In a previous article we explored Obergefell v. Hodges and same-sex marriage in Georgia. Here the Court ruled that the State of Georgia and all other U.S. states must recognize a marriage between two people of the same sex when the marriage was lawfully licensed and performed out-of-state. The decision also requires the State of Georgia to issue marriage licenses to couples of the same sex on the same basis that it would otherwise issue marriage licenses couples of different sexes.

This ruling not only impacted same-sex couples wishing to get married but also those who were already married in some states who now want to be divorced. Before the Obergefell decision, same-sex couples in Georgia who married out of state would be stuck in their marriages, unable to divorce because Georgia did not recognize same-sex marriage. Since this decision, these couples are now able to go through the court system in Georgia to divorce.  

However, the obstacles did not stop there. Many courts have been misapplying the date that a same-sex marriage began. This is a problem because during a divorce, a court has to determine the start and end date of a marriage. This information is needed in determining whether enough time has elapsed in the separation for a divorce to be initiated as well as determining marital and non marital assets. If the date of marriage was misapplied, it could mean that assets accumulated together for many years could be treated as separate nonmarital property of one of the spouses, and as such, it would be awarded to only one spouse instead of equitably divided between the two.

The date of marriage was also important to the case in the Obergefell decision. One of the cases involved a plaintiff whose husband had already died. The couple was married in Maryland, where same sex marriage was already legal, but their home state of Ohio did not recognize the marriage. Therefore, when James Obergefell’s husband died, he was not listed on the death certificate as the surviving spouse. Thus, the timing of the marriage was important in determining whether or not he could be listed as a spouse at the time of his husband’s death.  

At first glance, some people may think that the date of their marriage should be the date of the Supreme Court decision in Obergefell, as this would be  the same day that the marriage became legal in Georgia. But the Supreme Court decision implies that the marriage began on the date listed on the marriage license. This is made clear in the opinion in which Justice Kennedy states, “there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” This means that Georgia and all other states must recognize the marriage itself and recognize the date that the act of marriage occurred, as well.

If you believe that your marriage rights as a same-sex couple have been affected or you have questions concerning these issues, please contact the attorneys at Vayman & Teitelbaum. Our team is well versed and experienced in this area and can help you and your spouse.