I recently spoke at the State Bar of Georgia Family Law Institute on the topic of property disputes and same-sex relationships.  The State of Georgia has in place a constitutional amendment barring same-sex marriage.  Therefore the domestic code, housed in Title 19 which addresses equitable distribution of property acquired during a marriage does not apply.  

Where do you look when you are “out” of Title 19 and cannot make use of the legal theories and principles of divorce?

The below is simply meant to be a summary, a map if you will, of the available statutes in Georgia that can be utilized to address disputes over real and personal property/assets when  a same-sex relationship (or non-married couple) ends.  

Title 7 Banking and Finance
Title 9 Civil Practice Act
Title 13 Contracts
Title 23 Equity
Title 31 Health
Title 44 Property
Title 53 Trusts

Real Property Disputes and Personality Title 44 – Partition Actions

Statutory Partition:  O.C.G.A §44-6-160-174 – the right to petition is as a joint tenant and is to be utilized unless no adequate remedy.  This is a very strict process that is governed by the statute itself. 

Equitable Partition: O.C.G.A §44-6-140-142

When equitable partition authorized:
Equity has jurisdiction in cases of partition whenever the remedy at law is insufficient or peculiar circumstances render the proceeding in equity more suitable and just.  And where cannot divide the property in kind.  The Civil Practice Act applies to these actions

Illustrative Cases:

Borum v. Deese 196 Ga 292 (1943) – peculiar circumstance calls for equity (four tenants) where no remedy at law and cannot divide the property in kind.

Chaney v. Upchurch 278 Ga. 515 for illustration of statutory v. equitable and application by court – in application, the court is to protect interests of the parties involved.  If cannot divide the land – will apply equitable partition

Attorneys Fees are available in these actions.

Equity Applied in Real Property disputes

Jointly titled (tenants in common)– a rebuttable presumption exists that the property is shared equally. Burt v. Skrzyniarz, 272 Ga. 35 (2000) O.C.G.A. §44-6-120.  Both parties on title, but unequal investment into the property.  Parties were not married.

Folds v. Barber, 278 Ga. 37 (2004)– no marriage and only one party on title; however both put money down on the property. Discusses what to consider when dividing. Partition was proper and the court looked to the investment of each party into the property.

Other Equitable Arguments (oral agreements and implied promises and where not on title and no monetary investments)

Theories of Implied Trust – O.C.G.A. §53-12-130 (Article Seven)

Oral contracts or implied promises to perform – look at O.C.G.A. §9-2-7 causes of action  – quantum meriut – unjust enrichment.  – but may only recover value of services (investment in the home that is not monetary, e.g. sweat equity)

Voluntary agreements and oral promises: Title 23:Equity (see Article 7 for non-performance arguments)

Partition of Personal Property – O.C.G.A. 44-12-1

Covers theories and claims in trover and conversion

Financial Accounts – Title 7: Banking and Finance

O.C.G.A. § 7-1-812.  Ownership during lifetime

   (a) A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent.

Georgia Supreme Court has interpreted this to mean that this is simply a rebuttable presumption as to the intent of the ownership of the asset.  See: Caldwell v. Walraven 268 Ga. 444 (1997)

Other Available Arguments  – sharing of assets and a gift of title

Gifts –To constitute a valid inter vivos gift, (1) the donor must intend to give the gift, (2) the donee must accept the gift, and (3) the gift must be delivered or some act which under law is accepted as a substitute for delivery must be done. Ga. Code Ann. § 44-5-80. The party seeking to prove title by gift must do so by clear and convincing evidence.

            “The deposit of money in a bank in a joint checking account or subject to demand of another where the depositor also retains the right to jointly or severally demand and receive the funds so deposited, nothing else appearing, is not such a surrender of dominion over the funds thus deposited as to satisfy the requirements of delivery for the making of a gift.”  Stewart v. Stewart, 228 Ga 517 (1972)

Compare with: “When it appears that the donor has relinquished all dominion and control over property as owner and parted absolutely with title, the mere fact that the donee allows possession to remain with the donor will not necessarily defeat the gift.” Mashburn v. Wright, 204 Ga. App. 718, 420 S.E.2d 379 (1992).

Litigation Tips
 1.  O.C.G.A. 44-14-610 et. al. – Lis Pendens –means “pending lawsuit.”

Lis pendens, whether it be from the common law as provided in O.C.G.A. § 23-1-18, or by statute (O.C.G.A. Ch. 14, T. 44), has for its purpose the protection of innocent purchasers of real property involved in pending litigation. Patent Scaffolding Co. v. Byers, 220 Ga. 426, 139 S.E.2d 332 (1964).  The lawsuit itself is not enough and a lis pendens must be filed and recorded with the clerk of the superior court where the land is located.

To be used when the property itself is in dispute.

LIS PENDENS MAY NOT BE PREDICATED UPON ACTION WHICH SEEKS MERELY TO RECOVER MONEY JUDGMENT. Rather, its purpose is to notify prospective purchasers that the property in question is directly “involved” in a pending suit, in the sense that the suit seeks some relief respecting that particular property.  Evans v. Fulton Nat’l Mtg. Corp., 168 Ga. App. 600, 309 S.E.2d 884 (1983).

File in the suit and cross-reference (vice versa) with on the recording clerk/deed office.

2.     O.C.G.A. §9-11-65 – Injunctions and Restraining Orders  – in part:

“It clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition.”  Typically used if concern the other party may be moving or disposing of assets/securities before any litigation can occur to determine ownership interests.

Be sure to follow all the requirements of the statute.

3.    O.C.G.A. §9-8-1 et. al.  – Receiver  – can use for a fund or property, but can be costly.  Must show a need for a receiver where rights of the parties are not protected or need to be protected.  Best to have someone in mind or lined up prior to asking the Court for this relief.