When I have the opportunity to guest lecture before the Family Law class at John Marshall law school, we typically discuss the benefits and protections of divorce.  After all, divorce is a benefit of marriage; it comes with protections – for spouses and children.  Because of my experience lecturing on the topic, we discuss this model in the context of a non-recognized same-sex marriage and tackle this issue by discussing the differences in how a legally married couple and a non-recognized same-sex married couple are treated under Georgia law when they separate. 
In my last blog entry, I discussed the option of utilizing Arbitration for dissolution of same-sex marriages.  Let me highlight a bit more the versatility of this option, rather than court, when you have a client who seeks to separate from his/her spouse (gay or straight) when they have not been married but have intermingled assets or chosen to have and raise children.
Some quick differences in benefits available to a divorcing (legally recognized as married) couple and a non-recognized married couple, i.e. same-sex marriage, in the State of Georgia:

 

Alimony

 

Retirement Accounts

  

Real Property

 

Personal Property 

Financial Accounts (checking, savings)

Recognized Marriage

 

Available.

 

Divisible and transferable under tax shelter of the divorce.

 

Divisible if purchased during the marriage, regardless of investment or on the title.

Divisible if purchased during the marriage, regardless of investment or if on the title. (e.g. vehicle) 

Divisible if established or invested into during the marriage regardless of  whether a joint account.

Non-Recognized Marriage

 

Not Available.

 

Not divisible or transferable.  If by agreement no tax shelter.

 

Not divisible unless ownership interest established or on the title.

Not divisible unless ownership interest established or on the title.

Not divisible unless ownership established by virtue of title/name on the account.

With a recognized marriage your client’s interests, in any property or benefits held by the other spouse, are defined by the marriage itself.  With a non-recognized marriage (such as a same-sex marriage from another state), the client’s interest in the property is not defined by their standing in the relationship, but rather by their standing in relation to the property or interest he/she seeks.  As you can imagine, the later presents a much higher burden of proof and can be sometimes difficult as married couples (recognized or not) do not have a tendency to keep an accounting of their marriage; especially in the good times.
In Georgia, Title 19 is a one-stop-shop for the dissolution of the marriage.  For the non-recognized couple, any one or all of the following code sections will/may apply depending on your theories for either establishment of ownership or recovery of the interest in any particular property: Title 7 Banking and Finance; Title 9 Civil Practice Code; Title Contracts; Title 23 Equity; Title 19 Divorce (if there are children); Title 44 Property; Title 51 Torts; and Title 53 Trusts.
If a couple were to opt for mediation or arbitration, they could agree to implement the rules that govern divorce and reap most of the benefits afforded under Title 19.  Regardless of what the law may say, the parties by agreement may themselves choose to treat their marriage as legally recognized for the purposes of the separation. 
By no means does this solve the over-arching problem with full recognition nor replace the fundamental rights that are denied which simply cannot be fixed by contractual agreements between the parties.  For example, the tax consequences cited above cannot be changed as such are governed by IRS Tax Code and the current legal definition of marriage.  But, it is an alternative solution to a very burdensome problem, which could save the parties thousands of dollars in litigation and discovery costs and leave both leaving the marriage as they entered – on more equal footing.    
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.