Even though gay marriage is still banned in Georgia, gay couples here are tying the knot in other places. So it’s critical to grasp the magnitude of the merger, legally speaking, before saying “I Do” to protect you and your partner.
Marriage equality is sweeping through the South, and thanks to Lambda Legal’s lawsuit, which is moving through the courts, Georgia will hopefully soon join other states where same-sex marriage is legal. It’s understandable that LGBT couples in the Peach State want to join the excitement and take advantage of new opportunities to show their love, but there are important factors to consider before gay Georgians tie the knot.
“The past year has been one of the most exciting periods of the LGBT rights movement since the 1969 Stonewall uprising, and there have been times when it felt like the momentum toward marriage equality can’t be stopped,” says Jeff Cleghorn (second photo), who specializes in family law as a partner at the Atlanta law firm Kitchens New Cleghorn. “However, we’re not in the clear yet, and couples in states like Georgia – that still do not allow or recognize same-sex marriage – should take additional steps to secure their bond beyond saying, ‘I do.’”
While it might be romantic and whimsical to skip town and tie the knot, you could be positioning yourself for a love hangover without essential planning before walking down the aisle. Here are three steps that Cleghorn says LGBT couples should take while planning their vows.
Read the fine print
Marriage is about far more than love. Getting legally married means that you are entering into a binding contract, so it’s essential that you understand the terms and conditions. This isn’t one of those times when you want to just scroll to the bottom of the page and click “accept” without reading, no matter how aflutter your heart is for your soul mate.
Straight couples have been getting married for hundreds of years, and many of them still don’t grasp the magnitude of the merger that they are entering into. So there’s shellshock and sticker-shock when one of the spouses “breaches” that marital contract.
“Statistically, approximately one-half of all marriages result in divorce. Understanding the concepts of ‘equitable division’ and ‘marital property’ is something that all couples, gay or straight, would benefit from before finalizing their marriage,” Cleghorn says. “As LGBT couples gain access to the rights of legal marriage, we also take on the significant responsibilities that come with a marital contract.”
When you sign your marriage certificate, your future 401(K) contributions become a “marital” – think shared – asset. Similarly, your new spouse’s future Macy’s credit card bill becomes a marital debt. Your love for your new spouse may well override such contractual concerns, but at least you shouldn’t be surprised if debt in your spouse’s name becomes partly your problem if the marriage fails.
Create a pre-nup
When two partners are planning to spend the rest of their lives together, nothing spoils the romance like talking about the possibility of breaking up one day. Prenuptial agreements can be a sensitive subject even among heterosexual couples, but they have become an important tool to entering a long-term relationship with peace of mind. They are even more important to same-sex couples.
When same-sex couples return to Georgia after being married in another state, the moment they return the Peach State’s constitutional ban prevents recognition of the marriage.
“The good news is that the U.S. Supreme Court’s June 2013 decision in United States v. Windsor has opened access to a majority of federal benefits for LGBT married couples,” Cleghorn says. “However, there are still some federal rights that are denied to same-sex couples, including Social Security survivor’s benefits and certain Veterans spousal rights, and there are no protections on the state level in Georgia.”
Just as Georgia refuses to allow same-sex marriage, its constitutional amendment also prevents the state from allowing same-sex divorce. That means, married LGBT couples in Georgia lack all of the state-level rights and protections that traditionally accompany marriage, including spousal inheritance rights. So a pre-nup can offer skeletal protections to LGBT relationships.
These contracts can detail everything from asset and debt division to alimony and health insurance coverage, and are vital in the absence of traditional family law safeguards.
Location, location, location
Because of Georgia’s ban on recognizing same-sex marriages, couples also should carefully consider where to get married.
While all states opening their wedding registries to same-sex (and opposite sex) couples from other states, all states also have a residency requirement for divorce. So if a same-sex couple from Georgia goes to New York to tie the knot and then the relationship turns sour, the spouses will be prohibited from getting divorced in Georgia and they will be prohibited from getting divorced in New York. You would have to move to the Empire State and establish residency in order to then gain access to New York divorce courts.
A few jurisdictions, including Washington D.C. and California, will divorce same-sex couples who were married there but live in “non-recognition” states like Georgia, which is something engaged couples should consider during their wedding planning.
“While it would be romantic to have a beachfront wedding in Provincetown, Massachusetts may not be an ideal location to sign the legal marriage paperwork, if the couple is concerned about later being able to divorce should the marriage not work out,” Cleghorn says.
Some LGBT couples in Georgia already find themselves in marital purgatory after ending a relationship that was solemnized in another state. These couples have separated physically and emotionally, but they remain entangled legally – meaning all of the assets and debts that accumulate long after the relationship has ended may still be considered “marital.”
This also means that the spouses are prohibited from entering into a future marriage with a new partner, lest they want to run afoul of bigamy laws.
“Thankfully we’ve got Lambda Legal and a set of brave plaintiffs who are challenging Georgia’s same-sex marriage amendment in federal court, and the hope is that this will result in Georgia’s marriage ban falling soon,” Cleghorn says. “However, it’s not something we can take for granted, and until marriage equality is the law of the land in Georgia, same-sex couples should proceed with a firm understanding of their rights and vulnerabilities.”
Working with LGBT clients and on behalf of gay issues is nothing new for Kitchens New Cleghorn, a firm that has been a strong advocate for same-sex relationships in and out of the courtroom.
Cleghorn, a former Army Major, worked on successful efforts to end the military’s “Don’t Ask, Don’t Tell” ban on gay and lesbian soldiers, and watched in person as President Obama ended the ban and cheered the policy’s demise during events in Atlanta. Cleghorn is also past president of the LGBT attorney group Stonewall Bar Association. In 2011, the Human Rights Campaign honored Cleghorn with the Dan Bradley Humanitarian Award at its annual Atlanta dinner.
Cleghorn has been involved in various Atlanta LGBT non-profit groups over the years, including serving on the boards of Georgia Equality and AID Atlanta, and has represented pro bono clients for Lambda Legal and Immigration Equality. Kitchens New Cleghorn, LLC currently serves as outside legal counsel to the Atlanta Gay & Lesbian Chamber of Commerce and Atlanta Pride.
Second photo by Brent Corcoran