California made it legal for same-sex couples to marry in 2013. This was after the Supreme Court refused to hear the Hollingsworth v. Perry appeal, triggering a trial that invalidated Proposition 8. Later in 2015, during the Obergefell v. Hodges case, the U.S. Supreme Court’s ruling made same-sex marriages legal in all 50 states in the United States. Because the state recognizes same-sex marriages, couples in marriages or domestic partnerships must go through a legal process to end their unions. At the Los Angeles Divorce Lawyer, we have a team dedicated to making same-sex divorce as smooth as possible.
Like in any other divorce process, couples in same-sex marriages may face particular predictable and unpredictable challenges when undergoing a divorce. This makes it imperative to seek legal representation irrespective of the length of your union. We will work with you when navigating dissolving your marriage and ensure that your rights and best interests are well protected.
Same-Sex Divorce California—Overview
Same-sex marriages are a norm across America. Couples within the unions have the option to file for divorce if they experience irreconcilable differences.
Here are a few critical aspects you must know before kick-starting the process:
From a legal standpoint, domestic partnerships are not so different from same-sex marriages. The state recognizes the unions as legally binding. Therefore, if you are both married and in a domestic partnership, you must dissolve both arrangements before being considered single. Entering another marriage before divorcing your partner or dissolving your domestic partnership could quickly leave you facing bigamy charges.
California Is a No-Fault State
Same-sex couples in California can file for divorce if the union no longer works in their best interests. Because the state is a “no-fault” state, you don’t need to table your partner’s faults to be eligible for the same-sex divorce process. You can qualify for divorce as long as you are legally married to your partner and your union is irreparably broken.
Same-Sex Divorce Legalities
Even though same-sex marriages are legal in all 50 states in America, California was at the front line of the whole process. Unfortunately, such unions remain in their infancy phase, and there are many gray areas, especially when it comes to matters of property and debt division.
Moreover, no laws exist that touch on the length of a relationship. The majority of LGBT couples live together as couples for years before they decide to get married. Unfortunately, the law only recognizes the years in marriage and gives no regard to the length of the relationship. This often poses property and debt division issues, especially when couples have lived together for 10 or even 20 years before getting married.
Apart from the unique challenges posed by the length of a relationship and residency requirements, all other fundamental legalities of same sex-divorces are not so different from heterosexual divorces. This, however, doesn’t rule out the importance of seeking legal help before kick-starting the process.
Requirements for Same-Sex Divorce
One of the primary requirements you must meet to file for same-sex divorce in California is that you or your spouse must have been a resident of the state for at least six months. Moreover, either partner must be a resident of the specific county where you file the divorce petition for at least three months.
If you don’t meet the residency requirements to file for divorce, all is not lost. Legal separation is yet another option you may consider. You can then file an amendment petition and seek divorce once you meet the set residency requirements.
It remains imperative to understand that legal separation and divorce are two different things. A divorce ends a marriage permanently, declares you are single, and even gives you the green light to enter another marriage if you so, please.
On the other hand, a legal separation doesn’t end a marriage. It is merely a court order showing that you and your partner don’t live together and carry on with your lives separately. As such, separation creates financial boundaries and allows couples to decide on child custody, visitation and support, and issues touching on debts and assets.
Even though same-sex marriages are legal in all 50 states, different states comply with the Supreme Court’s ruling differently. This could pose specific challenges, especially if you want to file for divorce in California, but you married in a different state.
Residency Requirement Exception
Not all same-sex couples who want to file for divorce must meet the residency requirement. If you got married in California but no longer reside in the state and live in a state that won’t dissolve your kind of marriage, you can file for divorce in California.
In this case, meeting the residency requirement is not mandatory. You simply need to file the petition from the specific county where you got married. The only problem is that California courts may not have jurisdiction to make orders regarding issues of child support, custody and visitation, and matters of alimony, property, and debt division. On the bright side, unlike heterosexual marriages, same-sex unions are not weighed down by gender-specific role biases. This means that both partners enjoy balanced rights.
Prenuptial agreements can help prevent a range of problems inherent in LGBT marriages. If you have been in a relationship for decades before considering marriage, for instance, a prenuptial agreement can help ensure that the court recognizes the length of your relationship prior to the marriage. In case of divorce, the prenuptial agreement can give provisions for alimony issues, property and debt division, and even child custody, visitation, and support.
The practicality of a prenuptial agreement must not be underestimated. While all couples get into a marriage hoping to live happily ever after, fairy tale endings are not guaranteed. Prenuptial agreements can play a significant role in helping couples move on quickly should they choose to end their marriage.
Working with an LGBT divorce attorney can increase your chances of enjoying the best overall outcome. The expert can provide invaluable assistance, irrespective of whether you can end the union amicably or have to jump into the ring and fight for a reasonable arrangement. At the Los Angeles Divorce Lawyer, we can fight for your best interests and increase your odds of receiving what you are entitled to receive.
Same-Sex Couples Divorce Options
LGBT couples have options they can explore when their unions are on the rocks. These options include dissolving a marriage through divorce, dissolution of a domestic partnership, or seeking the annulment of a union. Furthermore, you also have the option of seeking mediation to mend your relationship or ensure an amicable divorce.
The suitable options to consider will highly depend on the type of relationship you have with your spouse. Some LGBT couples prefer entering into a domestic partnership, while others choose to get married. Moreover, some couples enter a domestic partnership and marry later. Note that from a legal standpoint, both agreements are legally binding.
Here are some of the available LGBT divorce options:
Married same-sex couples or those in a domestic partnership can consider a summary dissolution if they have been in the union for less than five years. Unlike traditional divorce, the process involved in this case is faster and easier. Most importantly, couples don’t need to meet the residency requirements.
To qualify for summary dissolution, both partners must:
- Want to end the domestic partnership
- Have been in the union for less than five years
- Have no kids conceived, born, or adopted before or during the partnership
- Not own or lease buildings or land parcels (apart from your current residence)
- Not have joint property acquired during the union whose value exceeds $45,000
- Not have separate properties whose worth exceeds $45,000
- Not have more than $6,000 in debts acquired during the partnership (except for car loans)
- Agree not to seek spousal support from the other
- Sign a legally binding agreement that says they don’t own community property or debts or have divided their property and debts
The standard divorce process requires same-sex couples to meet the set residency requirements before filing a divorce petition. If you or your spouse has been in the state for at least 6 months and in a specific county for about 3 months, you can proceed to file the petition. The usual divorce is not always a lengthy process, especially if couples can make amicable agreements.
Alternate Divorce Resolution
Another option to consider is alternate divorce resolution (ADR). This option is ideal for couples facing challenges when deciding on important matters such as child and spousal support, child custody and visitation, and property and debt division. Note that ADR processes can be short or long depending on the ability of the couples to make compromises. Moreover, the outcome of the process is often legally binding. Going against the agreements made during the process can be enough grounds for litigation.
Generally, ADR, just like mediation or arbitration processes, helps couples to iron out many differences. Note that the courts have to decide for you if you opt for a contested divorce. Through alternate divorce resolution, couples have a chance to make crucial decisions that could mend their unions or, at the very least, ensure a peaceful divorce.
If divorce is an inevitable path, your attorney can help you choose the right way to undergo the process. The specialist will consider your unique situation and offer guidance to help you end your marriage without facing hurdles you can easily dodge. Most importantly, an experienced attorney will fight for your rights, ensuring a divorce doesn’t leave you holding the short end of the stick.
Special Considerations in Same-Sex Divorce
Same-sex marriages are not so different from opposite-sex legal unions. Both relationships are legally recognized in the state, and couples undergo a nearly identical process during divorce. As such, LGBT couples undergoing divorce may struggle with common issues such as property and debt division, alimony and child custody, support, and visitation rights.
Even though the divorce process is standard, certain hurdles are specific to LGBT couples, irrespective of the partners’ genders. Here are some of the potential challenges you may face and how to have them resolved:
Establishing Parental Rights
In opposite-sex marriages, the wife is presumed to be the mother of the children and the husband their father. Such presumptions don’t exist in same-sex relationships.
Fortunately, the Parentage Act extends to same-sex couples, especially when a child is born during marriage. Often, the names of both parents appear in the birth certificate giving each spouse parental rights. During a same-sex divorce, the partners can use this parentage presumption to prove their relationship with a child when seeking child custody and visitation rights.
The laws that come into play are different when the couples involved use a surrogacy agreement to get a child. In this case, the pair must adopt the child to gain parental rights. Unfortunately, it’s often challenging for the spouse with no legal standing over a child to prevail when seeking custody or visitation rights. It is in your best interests to hire a skilled attorney who can provide personalized legal guidance relevant to your specific situation.
Child Custody Issues
When the parental rights of either spouse are not in question, challenges may arise when settling matters of child custody. Unfortunately, the law, as it is written and practiced is often unfair when dealing with child custody issues in same-sex marriages.
Generally, both partners are considered the legal parents of a child if:
- The child was born during the marriage or domestic partnership
- One spouse is the biological parent, and the other legally adopted the child or sought stepparent adoption
- Both partners jointly adopted a child
In this case, both parents have equal parental rights. They can agree on child custody matters without involving the court, or the court can decide for them and rule in the kid’s best interests.
When only one partner is the legal parent, the other may, unfortunately, have no grounds for seeking legal or physical custody. They may not have any financial obligations to their partner’s child and may therefore have no grounds for seeking visitation rights. This is irrespective of the reasons why they didn’t seek legal parenting rights.
It is possible to challenge the court and seek custody or visitation rights even if you don’t have parental rights. The process may pose significant problems, although you have a fair chance of winning. Sometimes, the courts consider the intent to conceive and raise a child and the relationship the non-parental partner has with the children.
Dealing with matters of child custody often tag along with unending pressures and uncertainties. Whether both partners in a same-sex marriage have parental rights or only one of them is a legally recognized parent, it’s always better to resolve out of court. Family law attorneys make excellent custody mediators and can help you reach a compromise on just about any child-related issue.
Before you decide to fight out child custody issues in court, remember that the whole process may not work in anyone’s best interest. The worst part is that it may also affect the child or children involved. Seeking legal assistance can save you a great deal of distress. Your lawyer will give negotiations a chance and see whether it’s possible to settle matters of physical and legal custody, child support, and visitation outside the courtroom.
Establishing the Length of a Marriage
Two main reasons make it essential to establish the length of a marriage. They include:
- To allow proper calculation of spousal support (if any)
- To mark the line between separate and community property
Unfortunately, California laws only recognize the duration of a marriage. This means that even if you lived with your partner for 20 years and only married for 3, the court will calculate alimony based on the fact that you were married for 3 years. Moreover, it will only consider property acquired during the 3 years as community property.
Distribution of Retirement Assets
After marriage, the retirement assets of one or both spouses may qualify as community property. This means they should be divided during divorce. Unfortunately, challenges may arise when a retirement plan refers to a ‘spouse’ only as a person of the opposite sex.
Access to Employment Information and Account Records
Same-sex couples enjoy equal protections awarded to opposite-sex couples in California. Unfortunately, they may still face challenges, especially when seeking their partners’ employment information or account records when undergoing a divorce. While it is possible to take legal measures and force companies to disclose this information, you must prepare yourself for hurdles if your spouse refuses to cooperate voluntarily.
Find a Los Angeles Divorce Lawyer Near Me
Divorce is a challenging prospect. This is irrespective of whether the couples involved are of the opposite or same gender. Either way, they are bound to experience some level of logistical and emotional difficulty. Same-sex divorces can pose more challenges because they often tag along with a unique set of hurdles. At the Los Angeles Divorce Lawyer, we can help you prepare for the divorce and generally aid in protecting your future. If you are considering filing for same-sex divorce, please call 310-695-5212 for a free and confidential initial case evaluation.