With many states now permitting “gay” or “same-sex marriages,” one is left to wonder of its potential to impact upon long-standing divorce and family law.  While Georgia has not yet adopted any legislation providing for gay or same-sex marriage, the following discussion shall serve as a cursory analysis of some of the main legal issues presented by such marriages, particularly as they stand in contrast to “traditional,” or heterosexual marriages.

First, it should be noted that most divorces in Georgia are “no fault” divorces, meaning that at least one spouse has to unequivocally plead that the marriage is “irretrievably broken.”  While some are “fault based,” this ultimately means that one party committed some form of “marital misconduct” that would entitle the other spouse to a divorce, as is the case with “infidelity,” but the “fault based” relief generally stops there.  In other words, a cheating spouse generally won’t leave you legally entitled to more alimony or marital assets than you would otherwise, nor will it give you custody, but it might play a role in what a Court will look for in terms of “good parenting” or “role model” material as it relates to the children.  The balance of the grounds for divorce can be found at O.C.G.A. § 19-5-3, which would include: intermarriage by persons with prohibited degrees of consanguinity or affinity (blood relative); mental incapacity during the marriage; impotency at the time of marriage; force, menace, duress or fraud in obtaining the marriage; pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown to the husband; willful and continued desertion by either parties for the term of one year; the conviction of either party for a [criminal] offense involving moral turpitude (to include a prison sentence of two years or longer); habitual intoxication; cruel treatment (including willful infliction of bodily pain or the threat of same); incurable mental illness; or habitual drug addiction. 

Obviously, any same-sex relationship can be as complicated as any traditional or heterosexual relationship and either spouse can qualify for divorce as quickly and easily as another regardless of sexual orientation.  However, what about the potential for alimony?  It should also be noted that, as a general matter, in the absence of a prenuptial agreement, when looking for guiding factors on how to dissolve a marriage, most states will look to the Uniform Partnership Act at O.C.G.A. § 14-9-804, the same Act that applies to the dissolution of small businesses.  What does it mean for jointly acquired assets?  Assets or real estate held beforehand that was brought to the marriage?  Did one spouse support the other during the marriage while he or she obtained an advanced degree or professional license that might be viewed as a potential “income producing asset” for the purpose of equitable distribution upon divorce?  Do the parties have a written agreement to solve these issues?  If not, these issues can be tedious and expensive to resolve. 

Traditionally, one might argue that a wife would be more likely to choose to stay home and manage the household and raise children while her husband would likely have the opportunity to work outside the home and bring more “take home” pay to the marriage by virtue of a male dominated workforce.  How does this then play out for same-sex marriages between males?  What about females?  Wouldn’t they likely benefit more from an explicit agreement as to who might work and who might manage the home and family?  What about the skill set of each spouse before the marriage?  Unless the parties were married young, it might be more difficult to argue that one spouse was willing to forgo the development of their skill set for a period of time so that both might enjoy a longer, more productive marriage.  Given the difficulty, it might even be more appropriate to draft a written agreement as to this issue, though there’s no arguing that the same endeavor will be sure to put a damper on the romantic aspect of the relationship.  In fact, it’s likely that the party that has more to lose has an even bigger interest in bringing up the issue, and no one likes to look as if they have one foot out the door of their marriage.

While it seems that most of the above issues can likely be worked out case by case by each party through healthy discussion prior to the marriage, the most difficult of these issues will undoubtedly be child custody.  O.C.G.A. § 19-9-3 specifically lists all of the factors a court will consider on the issue of child custody.  Historically, Georgia courts have applied what is known as “The Tender Years Doctrine,” which is a legal principle which has existed in family law since the late nineteenth century.  This common law doctrine presumes that during a child’s “tender years” (generally regarded as the age of four and under), the mother should have custody of the child.  While the application of this doctrine was said to have been abolished in Georgia in the mid-1990’s, one cannot help but to believe that its underpinnings still exist in the legion of case law on the issue of child custody. 

As to the “tender years” principle, how should this apply to same-sex couples?  Does it matter if they’re both women?  Does it matter if they’re both men?  Does it compound the problem?  Does it help it, leaving the courts no choice but to apply the “best interests” of the child standard – without preference for any one gender as it may pertain to parenting?  What about the “agreement” the couple might have made regarding one spouse working outside the home and one spouse being primarily responsible for child rearing?  As a general matter, when determining which parent might qualify as the primary caretaker, courts focus on direct care-taking responsibilities, such as (1) bathing, grooming and dressing the child; (2) meal planning and preparation; (3) purchasing clothes and laundry responsibilities; (4) health care arrangements; (5) fostering participation in extracurricular activities; and (6) teaching of reading, writing and math skills. 

As anyone can see, same-sex couples are likely to face even more difficulty in resolving marital issues upon dissolution than their heterosexual counterparts.  No one gender attribute can be assigned to one partner in a marriage any more than it can be assigned to the other, and each marriage, it seems, is as unique as its participants.  Also, to the extent archaic or outdated case law can arbitrarily help one party, it can just as easily hurt the other.  That is particularly why, at least in this author’s opinion, gay or same-sex couples are particularly susceptible to harsh results when dissolving a marriage without a prenuptial agreement, and they would almost always benefit from clearly expressing their intentions and expectations beforehand, and, to the extent possible reducing it to writing.  As to the “chilling effect” on the potential for romance – that’s another issue probably best left for a different type of licensed professional.

Like my Dad always used to say, “An ounce of prevention beats a pound of cure…”