Same Sex Divorce and Legal Separation in Georgia


Same-Sex Divorce and Legal Separation in Georgia

With the issuing of the Obergeffel v. Hodges decision by the US Supreme Court permitting same-sex marriage as a right under our Federal Constitution, a corollary question becomes whether a state must necessarily recognize divorces between homosexual couples.

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This poses a very curious legal question under Georgia law. (Apparently, this is not an issue under Alabama law, where a judge last year granted a same-sex divorce, despite a statewide ban on same-sex marriage in Alabama at the time).

Indeed, when states began barring same-sex marriage under their law, many state’s statutes also included language prohibiting divorce between such couples.  Georgia is an example of such a state.

OCGA § 19-3-3.1 (1996) states in relevant part: “the courts of this state shall have no jurisdiction whatsoever under any circumstances to grant a divorce or separate maintenance with respect to such marriage […].”

It may seem obvious that the legalization of gay marriage, necessarily requires the legalization of “gay divorce.” However, unlike marriage, divorce has not been explicitly held to be a fundamental right under our Federal Constitution.

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So, based on the current state of the law, are state statutes that bar same-sex divorce constitutional? Could a state prohibit homosexual couples from using their court systems for the dissolution process?

Several cases suggest that a state’s prohibition on same-sex divorce is unconstitutional under federal constitutional principles.

In Boddie v. Connecticut, 401 U.S. 471 (1971), for instance, the Supreme Court was confronted with the question of whether a state court’s refusal to waive a filing fee for a woman on welfare who was trying to file for divorce violated the Due Process Clause of our Federal Constitution.

The Boddie court noted:

“Our conclusion is that, given the basic position of the marriage relationship in this society’s hierarchy of values and the concomitant state monopolization of the means for legally dissolving this relationship, due process does prohibit a State from denying, solely because of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages.”

Thus, the Boddie court held that a state could not unreasonably block access to the Court system to a woman who sought to file for divorce via an unwaiveable filing fee.

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Another case that suggests there is a fundamental right to divorce that would extend the recent same-sex marriage ruling to the realm of divorce is United States v. Kras, 409 U.S. 434 (1973).  In Kras, a bankruptcy petitioner cited Boddie to argue that the unwaiveable bankruptcy filing fee coupled with her poverty unconstitutionally prevented access to the courts. The Supreme Court distinguished Boddie noting:

The Boddie appellants’ inability to dissolve their marriages seriously impaired their freedom to pursue other protected associational activities. Kras’ alleged interest in the elimination of his debt burden, and in obtaining his desired new start in life, although important and so recognized by the enactment of the Bankruptcy Act, does not rise to the same constitutional level.

Based on Boddie and Kras, it would seem to follow that a state could therefore not completely block access to the Court system by targeting a class of people from having access to the courts for matrimonial dissolution. Any state law to the contrary would appear to be unconstitutional.

If you are a same-sex couple seeking legal advice concerning a divorce in the state of Georgia or Alabama, call the Law offices of Mark Jones today for a consultation. 706-DIVORCE.

Lawyer Mark Jones





Columbus Ga Lawyer Mark Jones
233 12th Street #600
Columbus, Georgia
United States
Phone: 706-225-2555
Fax: 706-225-2556

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