As the reality of same sex marriage becomes the norm across the United States, some couples will, unfortunately, also need divorce services. The good news about same sex couple divorce is that these cases usually are not plagued by gender role biases, as heterosexual marriages might be. Under the law, same sex couples have the same divorce rights as any couple.
The state of California recognizes no-fault divorces. If you determine you and your spouse have irreconcilable differences, you can legally get a divorce without having to prove reasons for a divorce. In our state, the practice is more about creating a fair split between parties so both can move forward with their lives. Some considerations that will come into play may include:
- Child custody, support, and visitation
- Spousal support
- Property division
- Debt responsibility considerations
- Payment of legal fees
Unlike heterosexual divorces, same sex divorces may also require the parties to dissolve a domestic partnership. Domestic partnerships are viewed similarly to marriages in the state. You may need to dissolve both a marriage and a domestic partnership if you are legally bound by both covenants. Once you have dissolved either or both of these types of arrangements, the state will consider you single and eligible to enter into a future marriage.
Requirements for Divorce
You can get a divorce in California if you or your spouse has lived in the state for six months prior to the time of the request and one of you has lived in the county where you plan to file for divorce for three months.
If you do not meet the requirements at the time, you still have legal remedies. You can obtain a legal separation and formalize the divorce after the required time frame passes. Some individuals may also prefer a legal separation to a divorce in certain situations – for example, to maintain some benefits or to maintain religious practices.
Summary dissolutions are an alternative for couples who have been married or in a partnership for less than five years. A dissolution may offer a viable divorce alternative for couples who do not have any children, own or rent land, or have certain debt obligations. Those who do not meet the criteria for a dissolution will have to file for a traditional divorce.
How Are Parental Rights Established In LGTBQ+ Divorce Cases in California?
In an opposite-sex relationship, the male is presumed to be the father of a child that is born while the couple is married. It is the father’s name that goes on the birth certificate, establishing his parental rights without needing proof, a hearing or a paternity test. For a same-sex couple, however, there is no such presumption of parentage.
Establishing parental rights in an LGTBQ+ relationship requires going to court. You and your spouse will have to legally establish parentage so that you will be recognized as your child’s mother or father in the eyes of the law. Establishing parentage means getting a court order or signing an official declaration of parentage that states the names of the legal parents of the child.
It is necessary to establish parentage before the courts will order child custody, visitation or support to a parent during a divorce or legal separation in California. If you are not currently recognized as your child’s legal parent or guardian, this is something you will need to address before handling child custody during your divorce case.
Custody and Same Sex Divorce
Custody rights are one roadblock same sex couples may face. Unless a couple can make an amicable compromise regarding custody and visitation rights, the courts must take biological information, perceived caregiver roles, and other gray-area information into consideration. This may or may not work out for some couples. Until legal precedents can help the courts create standardized judgment rules, some custody battles may make same sex couple divorces more difficult.
If you or your ex-spouse is the biological parent of your child, he or she will have presumptive custody rights. With a parentage judgment – or if the child has been officially adopted by the other spouse – the second parent will also have parental rights. Depending on the court, the second parent may still have visitation rights even without a parentage order if he or she played an essential role in raising the child. This varies from court to court.
With a parentage order, both parents are given equal weight when a judge determines child custody. When both people in a same-sex marriage are considered the legal parents of a child, child custody is determined in the same way as in opposite-sex relationships. The courts focus on what is in the best interest of the child. The laws on parentage in California can be complex, so talk to a lawyer in San Diego to fully understand the details of your situation.
Dividing Assets in Same Sex Divorce
In same sex divorce, the courts may see cases where a couple has been together for 20+ years but has only been married for a short time. To fairly divide assets in these cases, the courts may need to eschew traditional asset division precedents in favor of sourcing each asset to the proper owner.
Can LGBTQ+ Divorce Rights Be Repealed in California?
Same-sex marriage is currently protected in California. It has been legal since 2013, when the Supreme Court of California declined to hear an appeal in Hollingsworth v. Perry. This ruling reinstated a previous ruling that invalidated Proposition 8, which stripped same-sex couples of the right to marry legally. Then, in 2015, the U.S. Supreme Court’s ruling in Obergefell v. Hodges gave same-sex couples the freedom to marry throughout the U.S.
In California, same-sex couples can get married anywhere, as the legal order that stops California from enforcing Prop 8 applies to government officials throughout the state. To marry in California, you and your partner must obtain a marriage license from the county clerk. Then, you must have the ceremony performed by an authorized person within 90 days. This includes a judge, clergy member, or someone who has gotten ordained.
Same-sex marriage is also currently protected on a federal level. In the 2015 case, the U.S. Supreme Court ruled that the 14th Amendment (guaranteeing all citizens equal protection of the laws) requires states to allow same-sex couples to marry and recognize marriages of same-sex couples performed outside of the state. However, the current conservative U.S. Supreme Court may revisit this case, or similar supreme court opinions, in the future to repeal same-sex marriage rulings.
If the Supreme Court does revisit the legalization of same-sex marriage, these laws would be put in the hands of the states to decide. There is currently a legal order that stops California from enforcing Prop 8, in place as of July 2022. This makes it unlikely for California’s same-sex marriage laws to be overturned or repealed, even if marriage equality is overturned by the U.S. Supreme Court at a later date.
Filing for a Divorce, Separation, or Dissolution
If you are in a marriage that is not working, there is no reason for you to remain legally bound in the state of California. Whether you were married here or you moved here after marriage in a different state, our San Diego divorce attorneys can help you dissolve your partnership, fairly divide your lives, and start over. Our team at the Boyd Law firm understands the laws and their applications in our state. We can answer your questions and start the process. For more information about our same sex divorce services, contact us today for a free consultation.