A client walks into your office. She and her partner have been together ten plus years. She reports that they have purchased real property together, own vehicles together and have two children. The relationship is coming to an end. They were legally married in a jurisdiction that recognizes same-sex marriage. She is seeking legal counsel for her divorce.
In Georgia, due to the lack of recognition of the marriage between persons of the same sex, how do you proceed? There are two issues common in most divorces: child custody and support as well as property division. Typically, you file a Petition for Divorce which then encompasses all these issues. But, since the legal union is not recognized, it cannot be treated as a divorce. Thus, child custody and support is treated as a separate case from the property division. Yes, procedurally, two separate actions must be filed; one to address the custody and support and a separate filing to address the property division. This is true even if all issues are properly in the same county. To further complicate matters, the real and personal property will be divided in accordance with Title 44, the Property Section rather than under Title 19 the Divorce Section which covers equitable division of property in a divorce. These two codes sections also involve different legal standards for the determination and division of ownership interests. However, the custody and support matters will still fall under Title 19. Procedurally, you must advise your client of the legal hurdles she faces.
To make matters worse, if any of the real property (such as a vacation home) is located in a a different county from the primary residence and children, then a third suit will need to be filed. Disputes over property must be filed where the property is situated. If the matter is contested your client could be facing three separate lawsuits in two different jurisdictions, if handled correctly. The cost to the parties is great, not only emotionally, but financially as well. Strategically, you cannot argue the case in total, which may lead to final rulings (in each jurisdiction) that have been issued after hearing and considering limited evidence related only to the issue before that particular court. Depending on the client’s circumstances, this may not be a good approach.
Are there any other options? Collaborative is very popular today and a great process. However, this only works if the parties are both willing to fully engage and participate in working together. So, how do you minimize cost and maximize legal arguments when the parties are not suited for collaboration or even mediation?
Benefits. The process can be more efficient and save parties money. Litigation can be costly and getting before a Judge can often take longer than anticipated. You can avoid filing in separate jurisdictions. You can agree to utilize Title 19 for determination of all issues, rather than applying the differing legal standards that exist between Title 19 and Title 44. Arbitration allows the parties to schedule a hearing that is convenient to them, their attorneys and the Arbitrator. Since the hearing procedure itself may be relaxed, discovery can also be narrowed, saving the parties valuable time and money. Finally, the process is confidential. Your issues will not be open to the public consumption of the courtroom. Georgia allows parties to arbitrate all property and financial matters ancillary to their divorce, separation or dissolution. If the parties agree, the decision of the Arbitrator will be binding as if a Judge decided the matter.
As of 2008, parties may also agree to binding arbitration on the issue of child custody as well as matters related to visitation, parenting time and the parenting plan. The Arbitrator’s decision shall be incorporated into a final decree awarding child custody unless the Judge makes specific written factual findings that under the circumstances the award would not be in the best interest of the child or children. O.C.G.A. §19-9-1.1
When you are meeting with your client, discuss the option of arbitration and regarding some control over the outcome of her dissolution. With the laws still in flux on the matter of marriage equality, it may be the next best option to having full access to the best resolution for the dissolution of the family and any property ownership issues.
–Denise D. VanLanduyt, Esq. is both a certified Mediator and a certified Arbitrator. Licensed to practice law since 2000, Ms. VanLanduyt has almost 12 years experience as a family law attorney. She is a founding member of the Family Law Section of the DeKalb Bar Association. Ms. VanLanduyt is a frequent speaker on topics related to family law.