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Gay Marriage and Same-Sex Divorce in Georgia: The Ultimate Guide

by Sharon Jackson  on July 31, 2023 under ,

Georgia allows same-sex marriages, thanks to a US Supreme Court ruling in 2015. With this, LGBTQ divorce should also be legal in the state. But while same-sex couples are now afforded the same rights as different-sex couples, there may still be unique issues in LGBTQ marriages and divorce that require legal attention. Here’s our comprehensive guide. For legal advice specific to your case, please reach out to our trusted LGBTQ family law attorney.

Is Gay Marriage Legal in Georgia?

Yes, gay marriage is legal in Georgia and all other US states. In 2015, the United States Supreme Court ruled in Obergefell vs. Hodges that states cannot ban same-sex marriages.. Prior to this federal decision, Georgia had absolutely prohibited same-sex marriages.

What are the Requirements for a Same-Sex Couple to Get Married in Georgia?

The requirements for a gay couple to get married in Georgia are the same as that for heterosexual couples. Each person must:

  • Be at least 18 years old (persons under 18 must submit further requirements)
  • Have no undissolved marriage or living spouse
  • Not be closely related to their spouse-to-be
  • Be legally competent to enter a contract.

You’ll need to obtain a marriage license then have your marriage solemnized in a wedding or similar ceremony.

How Can an LGBTQ Couple Get a Marriage License in Georgia?

Here are the general steps to get a marriage license in Georgia, applicable to all couples, including LGBTQ partners:

  • Appear in court. Both you and your partner must appear in person at the Probate Court to apply for a marriage license. If at least one of you is a Georgia resident, you can go to any county’s Probate Court. If neither is a resident of Georgia, go to the county where your wedding is to take place.
    Bring your respective IDs proving your age. If either or both of you have been previously divorced, you must also present a certified copy of the divorce decree.
  • Pay the fee. This may vary per county. In Gwinnett County, for example, the application fee is $56, but can be reduced to $16 if you and your partner have completed a premarital education program. Premarital education/counseling is not required to get a Georgia marriage license.

If you’re a Georgia same-sex couple who’s been denied a marriage license for no valid reason, contact Attorney Sharon Jackson. She has an in-depth understanding of Georgia’s complex marital laws and can help you assert your rights.

Is Domestic Partnership the Same as Marriage in Georgia?

LGBTQ couples have historically entered into legal domestic partnerships. However, in Georgia, a domestic partnership is not equal to a marriage. A domestic partnership agreement is a contract outlining the rights and responsibilities of each partner, but it has limitations. For instance, it does not afford tax benefits and automatic estate rights to either partner.

Does Georgia Recognize Gay Marriage from Out of State?

Yes, same-sex marriages from out of state should be legally recognized in Georgia, as per federal ruling. If you encounter a problem with the validity of your marriage in Georgia – such as when filing joint taxes or establishing your next of kin – please don’t hesitate to call Attorney Sharon Jackson. She’s an experienced advocate of LGBTQ couples and individuals in Georgia Family Law situations.

Can a Same-Sex Couple Get Divorced in Georgia?

Yes, a married same-sex couple can get divorced in Georgia in the exact same way that an opposite-sex couple can. They will have to resolve divorce issues such as property division and alimony (spousal support), and if applicable, child custody and child support.

What is the Process for Same-Sex Divorce in Georgia?

The process for dissolving a same-sex marriage is exactly the same as that for terminating a heterosexual marriage. These are the basic steps:

  1. Filing for divorce. One spouse files a Complaint for Divorce, which initiates the divorce case. They must then serve the divorce papers to the responding spouse. Service of papers must be done according to a court-prescribed procedure – typically by having the Sheriff deliver the papers to the respondent.
  2. Responding to the claim. The responding spouse has 30 days to file their Answer. They can either agree with all the claims in the original divorce filing, or raise a disagreement regarding property division, alimony, child custody, child support, or other issues. If the respondent does not reply within the deadline, the divorce may ‘default’ in favor of the filing spouse.
  3. Resolving disputes. If there are any contested issues between the spouses, they may try to resolve them outside of court. Many couples try alternative dispute resolution methods such as mediation, and most of them arrive at a settlement without the need for a court date. However, if the spouses cannot come to an agreement, their divorce will proceed to litigation (trial).
  4. Attending court dates. In an uncontested divorce, the spouses may only need to attend the Final Hearing in which the judge grants the final Divorce Decree. On the other hand, a contested divorce usually entails several trial dates including temporary hearings and depositions.
  5. Finalizing the divorce. After dispute resolution, or after the judge makes a decision on contested matters, the court will issue the official Divorce Decree.

Who Gets Alimony in a Georgia LGBTQ Divorce?

Just like in any other divorce case, determining alimony in an LGBTQ divorce depends on several factors. Typically, alimony goes to one spouse who will need financial help post-divorce.

When it comes to alimony (spousal support), there are two questions to be answered: first, whether alimony should be awarded to one spouse, and second, how much and for how long the alimony should be.

The spouses may answer these questions themselves by discussing with each other and creating a settlement agreement. In most cases, however, divorcing spouses cannot agree, and it is up to the court to decide these questions. The judge will weigh several factors such as the earning capacity of each spouse, the length of marriage, and the standard of living they have become used to.

Overall, the court’s goal is to create financial equity between the divorcing spouses. That is to say, the dependent spouse’s needs should be supported in proportion to the capacity of the paying spouse to provide support.

What are the Parental Rights of Same-Sex Parents in Georgia?

Under marriage laws, LGBTQ parents should have the same parental rights as heterosexual parents. They should, for example, have the authority to make decisions for their child. In the event of divorce, they should have the legal ability to fight for child custody or visitation.

Unfortunately, real-world situations can present unique challenges to same-sex parents. For instance, if a same-sex couple has a child via a surrogate mom, they will encounter a hurdle towards legal parentage. Georgia law currently recognizes only biological parents as the ‘default’ legal parents. The couple will need to complete a legal process such as adoption to establish their legal parentage of the child.

Without legal parentage, LGBTQ spouses may lose parental rights upon divorce. They may not be able to claim child custody, even if they’re legally married and have taken care of the child from the start.

If you’re facing a complex legal issue around same-sex parenting, consult with Attorney Sharon Jackson. As a knowledgeable Family Law attorney and a genuine advocate for LGBTQ parents, she’s ready to provide helpful legal guidance on your situation.

Who Gets Child Custody in a Georgia Same-Sex Divorce?

If a same-sex spouse has established their legal parentage of a child, they have the right to claim child custody upon divorce. If both gay spouses are recognized as legal parents and are contesting child custody, the court will make the custody determination. When suitable, judges in Georgia often grant joint custody between two parents. One parent gets primary custody while the other gets parenting time (visitation).

Which spouse gets primary custody in an LGBTQ divorce? To determine this, the judge will consider many factors such as:

  • The child’s bond with each parent
  • Which parent has been the primary caregiver of the child
  • Each parent’s capacity to raise the child
  • Each parent’s physical, mental, and emotional state
  • Each parent’s home environment
  • Any history of violence, abuse, or child neglect.

It’s also possible that the court will grant the child’s preference as to which parent to live with, provided the child is 14 years old or older.

Note that a parent may fight for custody only if they are a legal parent of the child. Among LGBTQ couples, legal parentage isn’t always automatic. Talk to Attorney Sharon Jackson if you encounter an issue regarding your custody rights as an LGBTQ parent.

Who Pays Child Support After an LGBTQ Divorce in Georgia?

Just like in any other child support case – in an LGBTQ divorce, the non-custodial parent will likely pay child support to the custodial parent.

As to how much the child support should be, Georgia Family Court uses a calculation method called the Income Shares Model. It takes into account the incomes and expenses of each parent, then determines the proportionate support amount that the paying parent should pay. You can find a step-by-step guide in our child support computation blog post here.

For LGBTQ Family Law Concerns, Contact Atty. Sharon Jackson

With 20 years of experience, Attorney Sharon Jackson has a sharp understanding of Georgia Family Law and how it applies to LGBTQ or same-sex situations. Her work has helped numerous spouses get favorable outcomes from their divorce, alimony disputes, and child custody disputes.

Talk to Ms. Jackson if you have a same-sex family legal issue in Georgia. Schedule your consultation by calling us at (678) 909-4100 today.


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