It’s been a little over six months since the Supreme Court ruled in Obergefell v. Hodges that states are required to recognize same-sex marriage. This decision not only granted same-sex couples everywhere the right to get married, but also gave same-sex couples the right to get divorced. When the ruling came down, some couples in Georgia were celebrating not because it meant thy could get married, but because it meant they could finally get divorced. Before marriage equality, same-sex Georgians who married out of state would basically be trapped in wedlock, unable to divorce because Georgia did not recognize their marriage. In fact, just one week after the decision came down, we got our first call about a same-sex divorce for a person who had been married in Massachusetts since 2005 and had been waiting almost three years for the right to get divorced.
Now same-sex couples are facing a new problem: courts are misapplying the date that their marriage began. This creates a major problem when a court has to determine which of the parties’ assets are marital and which are non marital. For the person I met with, the misapplication of the date of the marriage would essentially mean that everything they had accumulated together over the past 10 years would be treated as separate non marital property. I even saw one Judge go so far as to refuse to grant a divorce to a same-sex couple because they were separated before the date of the Supreme Court decision (he reasoned that because they had not consummated their marriage while their marriage was legal in Georgia, and there was no marriage to dissolve).
At first glance, applying the date of the Supreme Court decision seems reasonable: the starting point for the marriage is the day that the marriage became legal in Georgia. However, when looking at the Supreme Court decision itself, there is no question: the marriage began on the date listed on their marriage license, not the date of the Supreme Court decision.
Justice Kennedy makes this clear when he writes, “there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” In other words, Georgia does not just need to recognize same-sex couples as married, it must recognize the marriage itself.
This conclusion becomes even more obvious in the context of the facts in Obergefell v. Hodges. In one of the cases before the Court, the plaintiff’s husband had already died. The couple had been married in Maryland where same-sex marriage was already legal, but their home state of Ohio did not recognize the marriage. When James Obergefell’s husband died a few months after their marriage, he sued for the right to be listed as his surviving spouse on the death certificate. The decision held that Ohio was required to recognize the marriage that occurred in Maryland and accordingly, to recognize that James Obergefell was his husband’s surviving spouse. If the decision had only required Ohio to recognize the couple as married starting from the date of the decision, then the plaintiff would not have been the surviving spouse when his husband died, and he could not have been listed on the death certificate.
The Supreme Court’s decision in Obergefell means that Georgia must recognize same-sex marriages starting from date the couple was married, not the date of the decision.