ATLANTA — Despite having passed a 2004 constitutional amendment prohibiting Georgia courts from recognizing same-sex marriages, some married gay and lesbian Georgia couples are now finding that Georgia law obligates them to stay married – even after they have ended their romantic relationships.
Since Massachusetts became the first state to allow same-sex marriages in 2002, many couples in Georgia have traveled to a marriage equality jurisdiction and tied the knot.
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When Georgia’s newly gay married couples return home, however, they face a legal landscape that is stuck in time at 2004.
Not only are these couples denied the legal benefits of marriage, but they are prohibited from using Georgia courts to dissolve their relationship if they separate. Essentially, the state’s ban on same-sex marriage is also forcing some gay and lesbian couples to remain legally married.
“I frequently receive calls from married same-sex couples whose relationships have hit the rocks, asking what they can do. The short answer, in most cases, is not much. Georgia’s courts are prohibited from granting gay divorces, leaving many former same-sex couples in legal limbo.” said Jeff Cleghorn, who manages the family law practice at the law firm of Kitchens New Cleghorn, LLC.
The state constitutional amendment outlawing local recognition of same-sex unions, approved by 76 percent of Georgia voters in 2004, has incubated Georgia from the progress that is spreading with increasing speed across much of the nation. There are now 16 jurisdictions, including the very recent additions of New Jersey, Illinois and Hawaii, that allow gay marriage, in addition to 16 foreign countries, including Canada and some Mexican States.
“It seems almost inevitable that Georgia’s gay marriage ban will eventually fall, but perhaps not as soon as gay and lesbian couples would hope,” Cleghorn says. “Until then, married same-sex Georgia couples’ relationships remain uniquely vulnerable under Georgia law.”
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Cleghorn says there are several signs that the national momentum behind same-sex marriage is making headway in Georgia, including a recent Atlanta Journal Constitution poll showing that Georgia voters now approve of same-sex marriage by a 48-43 plurality. Same-sex Georgia couples who were legally married in another state, including active duty military personnel at Georgia’s many bases, are now receiving some significant federal marital benefits. Those benefits include the ability to file joint federal income tax returns, and – for married gay and lesbian Soldiers – access to on-base housing and military medical care.
“Married lesbian and gay couples in Georgia have some, but not all, of the rights of marriage. One right denied to same-sex Georgia couples is to seek a divorce,” Cleghorn said. No matter where they were married or who they work for, all gay and lesbian couples are still denied access to Georgia’s divorce courts. “It’s a bitter irony of the bigotry that inspired Georgia’s constitutional ban on same-sex marriage that the very same law is effectively requiring some same-sex couples to stay married,” Cleghorn says.
In addition to helping LGBT clients find solutions inside and outside of Georgia’s legal system, the family law attorneys at Kitchens New Cleghorn also advise same-sex couples to research the reach and limitations of same-sex marriage in the state in which they will wed.
“Some of the more popular destinations for marriage such as Massachusetts and New York have residency requirements for divorce, which effectively prohibit Georgia couples from accessing those state’s divorce courts” Cleghorn says. “When counseling same-sex couples who are planning to marry, I encourage them to consider marrying in one of the few jurisdictions which will grant a divorce to non-residents, such as California or the District of Columbia.”
