Divorce is rarely simple, but same-sex divorce can be especially complex.
It’s not uncommon for couples to have a domestic partnership and a formal marriage. Many same-sex couples also cohabited together for many years before walking down the aisle. With so many nuances involved, you need a lawyer who is experienced in this niche area of law.
The Law and LGBTQIA Marriages in California
Divorce is emotionally challenging and same-sex couples may be up against varying state laws if they no longer live in the state and want to divorce. Working with a divorce lawyer will help you navigate agreements, protect your interests and the interests of any children, and resolve conflicts you may have with your spouse.
California’s same-sex marriage laws may not align with other state laws. If you live out of state but were married in California, you can return to the county where you were married and file for divorce or legal separation even if neither spouse lives in California if neither spouse lives in a jurisdiction that will dissolve the marriage (If the jurisdiction does not recognize the marriage, it’s likely it will not dissolve the marriage).
Divorce and LGBTQIA+ families (if you were legally married) follow California’s no-fault divorce laws. You can file for a divorce if you have irreconcilable differences, but divorce may not be the only option.
For example, you may go through:
Domestic Partnership Dissolution and Divorce
If you’re in a domestic partnership, you can dissolve the partnership. Marriages where a domestic partnership occurred before the marriage are slightly more complicated. A dissolution and divorce may be necessary in this scenario.
You can use the same paperwork when filing for divorce to end both your domestic partnership and marriage by checking off both boxes pertaining to this when filing.
Summary Dissolution
Marriages that are shorter than five years can go through a Summary Dissolution. No formal court hearings are required, and the process is relatively simple and inexpensive. If you have been married for less than five years, this may be an option for you if you have:
- No minor children of the relationship
- No more than *$7,000 in unpaid debt incurred after marrying (excluding automobile loans)
- No more than *$53,000 in assets acquired during the marriage (excluding automobiles)
- No more than *$53,000 in separate property assets (excluding automobiles)
- No real property interests (except you can have a residential lease occupied by either spouse as long as it has no option to purchase and it terminates within one year from the date of filing the Petition for Summary Dissolution)
(*adjusted every odd year)
Summary dissolution also requires both spouses to agree to the terms of the divorce. It is important to note that both spouses must waive any right to spousal or partner support in a Summary Dissolution.
If you do not meet all of the above requirements, you must through the traditional divorce process. Divorces in California are no-fault and you may have the right to:
- Alimony (Spousal or Partner Support)
- Child support
Slight differences do exist for same-sex couple divorces that an attorney can help you navigate. One of the main differences deals with child custody.
Child Custody in LGBTQIA Divorce
Same-sex divorce child custody issues are more complex where:
- Either parent is a non-biological parent
- Parents are not on the birth certificate
- The child was born during a same-sex marriage
Another key complexity is ensuring that the court does not consider the sex, gender identity, gender expression, or sexual orientation of a parent when determining the best interests of the child. While it’s in your best interest to agree on child custody and visitation issues, but we know it’s not always possible. If you cannot agree, the judge will consider the relationship both parents have with the child, caregiver roles and other relevant information to determine child custody. The focus must remain on the health, safety, and welfare of the child, as well as the safety of all family members.
You can also enter into a shared custody agreement if it’s in the best interest of the child.
Property Division
Property division may be slightly complex, depending on when the marriage took place, and may be an area where you need the help of an attorney.
California is a community property state, which means any assets or debts acquired during the marriage are subject to equal division.
These can include:
- Anything purchased with money earned during your marriage
- Anything earned while you were married
- Any liabilities or debts accumulated during marriage
Property will be divided the same way regardless of whether it’s a same-sex or heterosexual divorce.
Separate property can include any property individually owned prior to the marriage as well as gifts and inheritance. These assets won’t be divided and will stay with the individual owner.
Although property division seems straightforward, same-sex couples face unique challenges here because the date of the marriage is not always clear.
The Timing of the Marriage or Partnership
Before same-sex marriage became protected at the federal level, couples in California had a few options to legalize their relationships: domestic partnerships and cohabitation agreements.
Some couples simply chose to cohabit together without a formal agreement.
Either of these scenarios can complicate a same-sex divorce and make it challenging to determine when the marriage began. If, for example, you and your partner cohabited for ten years and then married for five, should your union be judged as 15 years or five? The law is not entirely clear.
Timing is an important factor because it will dictate things like spousal support and property division. The date of the marriage will set a timeline for helping the court determine what’s considered community and separate property.
Further complicating things is the fact that divorce does not necessarily end a domestic partnership. Both the marriage and the domestic partnership must be dissolved.
If a same-sex relationship began prior to the legalization of same-sex marriage, proceedings could quickly become complex. Working with a lawyer who is well-versed in the nuances of LGBTQIA divorce can make all the difference.
How Can An Experienced Attorney Help You And Your Family Navigate Divorce?
At Wine Country Family Law, P.C., ,we understand the nuances and challenges of divorce and LGBTQIA+ families. Our attorneys are here to help you navigate your divorce, answer your questions and make your life easier.
We assist clients throughout Santa Rosa, Petaluma, Ukiah and surrounding areas.
Get in touch with us today online or call us at 707-669-0841 to schedule a consultation and see if our firm is a good fit for your divorce.
