The Atlanta Lawyer August/September 2015 | Page 8

Legal Minute Same Sex Marriage…. and Divorce By Rachel Platt The Platt Law Firm [email protected] O n June 26, 2015, the Supreme Court, in the case of Obergefell v. Hodges, ruled that the Constitution requires that same-sex couples be allowed to marry no matter where they live and that states may no longer reserve that right only for heterosexual couples. Not only do gay and lesbian couples now have the right to marry, but they are also afforded the same benefits that oppositesex married couples receive such as getting social security benefits, filing taxes jointly, and being able to get divorced. Prior to this decision, if a same-sex couple wanted to marry, they had to travel to a state that would allow them to get married. However, if they resided in a state that did not recognize their marriage, there was no avenue for them to get divorced. States have residency requirements that outline how long a person must be a resident of state before being able to file for divorce. So, even though gay and lesbian couples could travel to a state to get married, it was very difficult for them to get divorced because they could not meet the residency requirements. Some states and jurisdictions waived that requirement if you were married in their area, but it was still very difficult for people to get divorced. However, with this new Supreme Court ruling, now if a person was married in any jurisdiction, their marriage is legal in all jurisdictions. Thus, every person who has been married, regardless of where, is entitled to a divorce and to the protections that the divorce laws provide. The divorce laws provide many protections and procedures when people wish to go their separate ways, such as the ability to divide assets regardless of whose name they are, the ability to deal with real property, again regardless of whose name it is in, and the ability to seek support from a spouse. All of these protections were not available to individuals who were in long-term committed relationships that were not allowed to legally marry in their home states. By way of example consider the following factual scenario: Two women have lived together for 20 years in a state that will not recognize their marriage obtained in another state. They have two children, and one of the women did not work and stayed at home to raise the children while the other worked. They have lived in the same home for the last 15 years, but it is in the working woman’s name, and she is the only one who contributed to the mortgage. The working woman was able to put a significant amount into her retirement account, while the other woman has not saved up anything for retirement. Now, the two women wish to go their separate ways. If they are not married, the house that they have lived in belongs solely to the woman whose name is on the house and who has paid the mortgage. The non-working woman is not entitled to any support or any of the other woman’s retirement. However, if they have a legal, valid marriage, the retirement account can be equitably divided (regardless of