What You Need to Know About Same-Sex Divorce in California

Married gay and lesbian couples facing divorce have the same rights as opposite-sex couples in California. However, there are some facets of same-sex divorce that make the process different and oftentimes more challenging. Below are some unique caveats of same-sex divorce that should be considered.

Duration of Marriage in Determining Spousal Support and Property Division

The duration of a marriage is an important factor for anyone getting divorced in California, whether same-sex or opposite-sex. It is important because marriage length is used to determine whether alimony is necessary and how long alimony should last. It is also a key factor when establishing the divide between separate and community property.

Long-Term Cohabitation

However, many same-sex couples were cohabiting prior to marriage before they could legally marry and, thus, they were all but married. If a same-sex couple was together for a length of time before marrying (15 to 20 years), most California family court judges will take that time into account when ruling on issues like spousal support and property division.

Common Law Marriage

California does not recognize common law marriages in the state. However, if a common law couple from another state moves to California, the state will recognize their common law marriage if it meets the requirements in their previous states. This can further support a case for spousal support or help in determining the division of assets for divorcing couples who contributed to a significant amount of assets together, even before they were legally married.

Other Issues Involving Property Division

Each case is handled differently, though. Based on the situation, a judge may deem assets that were acquired before the marriage was legal, even if the couple was in a cohabiting relationship, ineligible for division. It may be more obvious that assets were obtained solely by one party’s income rather than contributed to by both parties.

The issue of property division can also be complicated if the couple’s finances became co-mingled, such as bank accounts from which renovations to a property owned by one spouse were paid for using both parties’ resources. This can require the division of the property between both parties, regardless of the fact that only one of them actually owned it starting out.

Parental Rights

It is assumed in opposite-sex marriages that the husband is the father of any children the mother birthed during the marriage. However, in same-sex marriages, there is no such presumption. In same-sex marriages that share children, if parentage is established according to state laws and the legal process was properly carried out, there are typically no problems that arise regarding parental rights, even if one parent is the child’s biological parent.

In situations where parental rights were not legally established prior to a divorce case, it will need to be addressed and handled appropriately if custody and/or parenting time are desired on the divorce decree. Otherwise, the spouse without parental rights has no right to joint or full custody. They may not even have visitation rights with the marital child or children.

Discovery

One last area that has been problematic in same-sex divorces involves the discovery process. Some divorce proceedings require discovery, which can require an investigation to be conducted to reveal assets or obtain income verification from employers. This often happens when one party does not voluntarily disclose such information. In some same-sex divorces, there are instances where employment and financial account records have been withheld.

If this has proven to be a problem in your same-sex divorce case, your most strategic move is to speak with a same-sex divorce lawyer with experience resolving these types of issues.

FAQs

Q: Are There Different Court Proceedings for Same-Sex Divorces in California?

A: No, same-sex couples who are married must go through the exact same process as heterosexual couples do when divorcing in the state of California. This is also true for same-sex domestic partnerships. Additionally, this applies to other areas of divorce, including child custody, child support, alimony, and division of property.

Q: What Are the Residency Requirements for Same-Sex Divorces in California?

A: Residency requirements for same-sex divorce couples who are divorcing in California are the exact same as for opposite-sex couples. Residency laws require at least one spouse to hold residence in California for at least six months. Additionally, at least one spouse must reside in the county where they intend to file for at least three months before filing for divorce.

Q: What Are the Residency Requirements for Dissolution of Same-Sex Domestic Partnerships in California?

A: There are no California residency requirements for both same-sex and opposite-sex couples who wish to end a domestic partnership that is registered in California. They may dissolve their partnership in California regardless of where either of the partners reside, even if they do not live in the state of California.

Q: Are the Same-Sex Marriages That Took Place in San Francisco in 2004 Valid?

A: No. Same-sex marriages that occurred in San Francisco in 2004 were later deemed invalid by the California Supreme Court. These are still considered void. Any couple wishing to be legally married will need to remarry under the current laws that legally recognize same-sex marriage in California. However, in some cases, couples have used participation in the 2004 event as a way to offset the “duration of marriage” issues amid same-sex divorce proceedings.

Hiring a California Same-Sex Divorce Attorney

Same-sex marriage and divorce are considered equal in every way to opposite-sex marriage and divorce in the eyes of the law. However, there are intricacies in same-sex divorce that are not present in traditional divorce cases. Bickford Blado & Botros understands this and has experience advising, mediating, and litigating cases involving same-sex divorce.

If you have questions about how the law affects your same-sex divorce case, we can help you discern the sensitive and unique details of your divorce. Contact Bickford Blado & Botros to gain invaluable insight into California divorce laws and their application to your divorce. We look forward to discussing the ideal legal strategy for your case moving forward.

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