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When Same-Sex Couples Get Divorced, How Is the Marital Estate Divided?

Date: April 3, 2017 Tags: , , Author: Michael P. Hodes

In a divorce, the courts determine how to divide up everything that has been accumulated during the marriage. For same-sex couples, who only have had the right to marry in Georgia since the 2015 Supreme Court decision in Obergefell v. Hodges, the path to an equitable split may be less traditional.

A same-sex couple may have been together for decades, but some courts will make an equitable division of only those assets accumulated during the much shorter period of time they were actually married.  Other jurisdictions will look beyond the marriage date and permit division of assets that were accumulated during the period of cohabitation.

Not in Georgia.

Alimony vs. Property Division

As a way of balancing the scales, one tool that courts may use in a same-sex divorce is “lump-sum alimony.”

Historically, alimony was an allowance, typically from the husband’s estate, to give to the wife to make things equitable. Later, the doctrine of equitable division evolved and the courts recognized that both spouses could receive the assets accumulated during the marriage regardless of whose name was on the title.

But the lump-sum tool is still on the books and can still be used to make a property claim to an opposing spouse’s separate estate. In same-sex marriages, there may be disproportionately large separate estates and a smaller marital estate because these couples only recently were granted access to marriage. This lump-sum alimony tool may be one way Georgia courts are able to fashion a division of property that is, in fact, equitable.

There also may be an increased need for periodic alimony in same-sex marriages. Periodic alimony is what comes to mind for most people when they hear the “alimony” word – that is, payments from one divorced spouse to another made regularly over time. Where there are fewer marital assets to divide, periodic alimony also may be used to achieve a more equitable outcome.

Some states have statutory guidelines for determining the length or amount of alimony. Georgia has a host of factors that the courts can consider, but judges have broad discretion in determining how much and how long payments will be.

Prenuptial Agreements

Same-sex couples may want to draft prenuptial agreements that will address some of the inherent inequities. Couples who have been together for a significant length of time should consider defining what’s going to be each spouse’s separate property from the outset to avoid disputes.

A pre- or postnuptial agreement is a good thing for almost any couple. You can save yourself the headache of having the courts parcel out what’s yours and what’s your spouse’s. Couples that already have it spelled out will cut down on litigation, expense and stress in the event of divorce.