Understanding the Sensitivities of Same-Sex Divorces

California has been a trailblazer when it comes to recognizing same-sex couple rights, including same-sex marriage, which became legal in 2015. Despite the 10-year anniversary of the legalization of same-sex marriage, same-sex divorce is still met with challenges and must be handled with care, as it can often be a delicate legal issue for some couples.

While the laws apply to same-sex divorce exactly the same as they do to heterosexual divorce, the majority of same-sex divorce cases don’t play out in the traditional manner. Because of the unique circumstances of these cases, it takes a special legal perspective to navigate the intricacies of same-sex divorces.

It should be noted that custody matters, child support, spousal support, division of assets, and the actual process for the dissolution of marriage are the same for heterosexual and same-sex divorces. However, due to the infancy of same-sex unions, same-sex divorces still meet challenges within the realm of California law.

Same-sex couples who have decided to divorce should seek out legal representation from an attorney who understands that each same-sex divorce case brings new and unprecedented challenges that must be handled sensitively but, at the same time, assertively.

A compassionate and understanding demeanor is the ideal manner in which an attorney should approach these cases because, in many instances, it takes a keen eye and deep knowledge of the law to apply it to the unique circumstances of a same-sex divorce case.

California law aims to be fair and treat both parties of a divorce equally, and this is true of all divorce cases. But with decades of heterosexual divorce cases fueling the court, the laws, and the communities where people live, everyone involved must take on a new perspective of the law when same-sex couples divorce.

How Same-Sex Divorces Are Different

Even though the laws are the same, the circumstances make same-sex divorce cases very different than heterosexual divorce cases. The biggest differences lie within the areas of property division and child custody, but difficulties are not limited to these two areas. Below is a description of some of the biggest obstacles same-sex divorcing couples face.

• Property Division: In some same-sex divorce cases, property division can get tricky. Couples may have been living in an unofficial domestic partnership for years prior to the date of their marriage, which can only be as long ago as 2015. This sometimes makes it difficult to apply California community property laws to a same-sex divorce case.
• Child Custody: Due to the non-traditional ways in which same-sex couples have children, sometimes there are complex issues in regards to one parent being the biological parent of a child but the other parent not being biologically related to the child. This can be confusing for California family courts when determining child custody orders and acting in the interest of the child.

  When a child is raised in a home with two parents, the court must determine custody and visitation rights for both parents according to what meets the child’s needs. California recognizes the importance of children having both parents in their lives. Sometimes, though, the biological parent feels they are the only parent with custody rights to the child.

  However, family court considers the child’s well-being as paramount and often has to make hard decisions on a child’s behalf within the realms the law allows.

For children who were born within a marriage, CA family law recognizes both parents in a same-sex marriage as legal parents. This means in a divorce, both parents have the rights and responsibilities of child support, just as in a heterosexual divorce.

In regard to children who were not born during the timeframe of the marriage, if the parents went through the legal process to establish parentage through the state, it can significantly simplify custody proceedings in a same-sex divorce case. However, if one of the parents is not legally recognized as the mother or father of the child, the situation becomes complicated.

• Parental establishment will have to be addressed and established before custody and visitation proceedings can move forward. This complicates many cases and can prolong same-sex divorce cases involving child custody issues.
• Support: In all divorce cases involving children, California is very much concerned with the financial well-being of a child. It is a top priority for family court to ensure the financial needs of a child of divorcing parents are met.In many cases, its clear which parent has substantially more income and which parent needs support. However, it can get complicated for a judge to discern which parent ultimately should owe the other parent support payments.

FAQs

Q: Are There More Same-Sex Divorces Than Heterosexual Divorces in California?

A: No. The divorce rate for same-sex couples is generally the same as it is for heterosexual couples. That is, the same number of divorces are seen in same-sex marriages as there are in heterosexual marriages

Q: What Is the Most Common Year for Couples to Divorce?

A: It is believed that there are two periods during marriage for which divorce rates are the highest. This is during the first two years of marriage and during the fifth through eighth year of marriage. During those two high-risk periods, the two years that seem to be the time when the greatest number of couples divorce are the seventh and eighth years of marriage.

Q: What Is the Divorce Rate for 2023?

A: In the US, the divorce rate has been on the decline, but this could be linked to a decline in marriages overall. The divorce rate for first marriages falls within a wide range of 35% to 50%, while second marriages have a 60% to 70% divorce rate.

Q: What Are the Top Factors of Divorce?

A: There are certain factors that play a role in the likelihood of a marriage ending in divorce. These include age at the time of marriage, financial stability, education, and socioeconomic status, and infidelity. Another contributor to increasing divorce rates is the implementation of no-fault divorce in the 1970s, which opened the door for anyone to divorce with no need to say why.

Hiring the Right Same-Sex Divorce Attorney

If you’re in a same-sex marriage and wish to get a divorce, the attorney you select to represent you in your case should be experienced and well-researched. Bickford Blado & Botros would love to discuss with you how our legal services can contribute to your case and optimize the outcome for you and your family. Contact us today for a consultation.

 

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