Domestic Relations

    We do not do divorce, child support, or child custody work of any kind, though we can certainly refer you to qualified legal experts in those areas. We do, however, provide certain similar services, including domestic relations assistance for same-sex and other non-traditionally married couples.

    Pre-Nuptial Agreements:    Do you have certain "family" or other pre-marital assets that you do not necessarily want to pass to your spouse (or to his or her family ... or the next spouse) after you die?  Are you madly in love, but not entirely quite sure if your money is a motivating factor for your intended wife or husband?  Do you want to prove to your intended spouse that his or her money is not a motivating factor for your proposed marriage?

    There are lots of reasons why you might want to consider execution of a pre-nuptial agreement (also called an antenuptial agreement) before you get married.  "Pre-nups" are generally enforceable in Georgia, if properly written and attested, if there has been full and complete, honest disclosure of each party's pre-marital assets to the other, and no unusual change of circumstances prior to divorce have occurred.   On the other hand, improperly written pre-marital contracts which are obviously executed "in contemplation of divorce" (as opposed to "in contemplation of marriage") will generally not be enforced in Georgia. Before you get married, let us help you find the right formula to protect your separate assets and/or to take the materiality of "things" out of the marital equation.

    Guardianship Designations: If you have children, have you considered who will be the guardian for your children if you die or become incapacitated.  In most cases, if the child's other natural parent is available, if his or her parental rights have not been terminated, he or she will serve as guardian in your absence. But, in all other cases, the decision of will be responsible for your child's future welfare is left up to the courts.  The courts do, however, give preference to a parent's designation of guardian (whether temporary or permanent) for a minor child, so long as is in the child's best interests to do so. We can help you craft guardianship documents which will state your preferences in these regards.

    Domestic Partnership Agreements: Whether you are gay or straight, before you enter into a committed relationship where assets (or liabilities) may be shared, you need to consider execution of some form of "domestic partnership" agreement. This is particularly true for gay and lesbian couples, since passage of Georgia's anti-gay-marriage constitutional amendment in 2004.

    Georgia Constitution Article I, Section 4, Paragraph I now provides that Georgia only recognizes marriage as the union of a man and woman, and that marriages between persons of the same sex are prohibited here.  The provision goes on to state that:

"No union between persons fo the same sex shall be recognized by the state as entitled to the benefits of marriage. This state shall not give effect to any public act, record, or judicial proceeding of any other state or jurisdiction respecting a relationship between persons of the same sex that is treated as marriage under the laws of such other state or jurisdiction.  The courts of this state shall have no jurisdiction to grant a divorce or separate maintenance with respect to any such relationshp or otherwise to consider or rule on any of the parties' respective rights arising as a result of or in connection with such relationship."

    This translates to gay and lesbian people having very limited rights to enter into enforceable contracts between themselves which look or sound anything like a "marriage."  By the same token, the Courts of this state have previously ruled that contracts, even within the framework of a non-traditional marriage, which deal only with property, will be enforced in Georgia.  Presumably, gay and lesbian people are still at least entitled to the same rights as other people to have their contacts concerning "things" enforced in the Georgia courts, even if disputes concerning their marriages cannot be heard by the Georgia judiciary.

    Until these provisions of Georgia law change, gay and lesbian couples need to be careful how they draft contracts between them. As a consequence, we routinely offer "real estate partnership agreements" to our partnered clients, both same-sex and opposite-sex couples.  These may not be a perfect solution particularly for the unfair treatment of gay and lesbian couples in Georgia, but they can help to avoid at least some property-related issues between domestic partners in the event of a dispute or break-up.

    Too many non-traditional couples purchase property together without thinking of what will happen if they break up, or if one partner becomes incapacitated, financially or medically.  If you put your partner's name on the title to your home, you cannot "undo" the transfer, without voluntary agreement by your partner, or a court-order.  Court-supervised "partition" proceedings are very cumbersome and generally result in the parties getting the lowest possible return for the property, at the highest possible price.  Having in place a contract which dictates what happens when joint owners decided to terminate their joint ownership, can help avoid such disputes, or make them less costly when they occur.

    Also consider the prospects of what might happen if your partner becomes incapacitated (e.g. dementia, Alzheimers, etc.).  He or she can elect in writing for you to be appointed as his or her guardian in the event of incapacity, but that decision is ultimately up to a court to decide and families may interfere.  Having a real estate partnership agreement in place can help avoid controversies over property if and when incapacity happens.  Wills, Advance Healthcare Directives, General Powers of Attorney, "survivorship" Deeds, and Trusts are also important tools in a domestic relations context.

    These are not just gay and lesbian issues.  More and more straight couples are exploring alternatives to marriage.  Traditionally married couples have divorce laws, and hundreds of years of court case precedents in that area, to help guide them through break-ups.  Non-traditionally married couples do not, whether gay or lesbian, or a straight couple who want to share and protect their assets, but don't necessarily want to become part of a traditional marriage.

    Let us help you navigate these tough issues, and create the documents which best suit your particular needs.

    Gay Marriage: At the same time, many gay and lesbian Georgians are taking advantage of increasing gay marriage rights available across the country and internationally.  Presently, at least eight (8) states, the District of Columbia, and at least one U.S. native American tribe now recognize gay marriage and/or gay civil unions. Many more foreign countries formally recognize gay unions of one form or another. So, more and more gay and lesbian couples are getting married or entering into formal civil unions. Regrettably, they often do so without thinking of the legal consequences.

    No. Presently, gay marriages and civil unions may not be performed with legal recognition in Georgia, and Georgia does not legally recognize gay marriages or civil unions performed elsewhere. That does not mean, however, that such unions should not be carefully and seriously considered before you enter into one.  First, you may not be living in a non-recognition jurisdiction if you break up or if one partner dies.  Secondly, laws change.

    Consider the Georgia couple who get married in Canada and come back to Georgia to live.  Consider that same couple who break up in Georgia and do nothing to formalize that "divorce," either here or elsewhere.  They are still "married," as far as Canada is concerned.  Consequently, if either of them moves to a state where gay married is recognized, whether now or in the future, they are arguably still "married" in that state as well.  Would entering into a new gay marriage in that state then constitute polygamy?  Could a jilted partner sue in Canada to recover marital property rights?  What are the consequences if a child is later born to a non-divorced partner?

     We can't say that we have solutions for all of the questions raised by this rapidly evolving area of the law. But, we can help you find the answers you need.

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