While same-sex divorce follows the same process as divorce for a different-sex couple, the relatively new state and federal marriage laws create unique legal issues for same-sex couples on topics like relationship status, child custody and support, parentage, and community property. With same-sex marriage laws still in their relative infancies, same-sex couples need wise, competent legal counsel to guide them through a court system that is often unclear on this new territory of law.
Below you will find some helpful information to answer some of the most common issues same-sex couples and their families experience when ending a marriage, domestic partnership, or civil union in California.
Dissolution of Same-Sex Relationships: What’s Your Status?
The complex legal journey towards marriage equality that has taken place over the last decade has created a peculiar legal dilemma for some same-sex couples: Multiple legal statuses. Many couples have more than one recognized relationship status, starting out, for example, as domestic partners and later marrying. Upon separation, it is very important to dissolve each of these statuses. Marriages, California Registered Domestic Partnerships, civil unions, and domestic partnerships from other states can be dissolved in one proceeding. However, dissolving one status does not automatically dissolve the others – they must all be included in the same case.
What are the requirements to dissolve each legal status?
- Marriages: California fully recognizes all marriages between same‐sex couples who legally married in any jurisdiction. The process for dissolution of a same-sex marriage is identical to all other dissolution proceedings. Click here to read more about the dissolution process.
- EXCEPTION: Same-sex married couples who married in California but later moved to a state that will not dissolve a same-sex marriage can file to end their marriage in California, regardless of the state’s residency requirements. You must file in whichever county you were married. However, if neither party lives in California, the court may not be able to make orders about other issues such as property and debt division, spousal support, or child custody.
- California Registered Domestic Partners: California Registered Domestic Partners enjoy all the rights and responsibilities of marriage under California law. Generally, the process for dissolving a California Registered Domestic Partnership is the same as that of marriage dissolution. However, a few exceptions apply:
- The summary termination process is unique to registered domestic partnerships as an alternative to the dissolution process in limited circumstances, and requires filing with the Secretary of State rather than the court.
- Residency requirements may differ. If the domestic partnership is registered in California, the parties do not need to meet the California residency requirements that married couples must meet. If the domestic partnership was not registered in California, at least one of the parties must have lived in California for the last 6 months, and the county in which they plan to file for the last 3 months.
- Note: If you are in BOTH a same-sex marriage AND a domestic partnership, and you want to end both at the same time, you must meet the residency requirements for both.
- Civil Unions: Civil unions and domestic partnerships from other states that are “substantially equivalent” to California domestic partnerships are treated as registered domestic partnerships under California law. Out-of-state civil unions and domestic partnerships must be dissolved or annulled by a court, much like the marital divorce process.
Establishing Parentage for Same-Sex Couples
Any parental right, such as legal and physical custody orders and visitation rights, hinges on whether a party is deemed a “legal parent” to the child. For same-sex parents, this issue can be particularly complex when it comes to adoption and third-party reproduction (i.e. sperm, egg, and embryo donation and surrogacy). In California, there are numerous ways that a parent can be recognized as a legal parent.
A legal parent can include:
- Biological/birth parent;
- Adoptive parent (regardless of gender);
- Male parent with a signed and properly executed voluntary declaration of paternity;
- Presumed parent: A person who is married to or in a registered domestic partnership (or out-of-state civil union or registered domestic partnership) with a birth mother is presumed to be a parent when:
- They were married or in a registered domestic partnership (or had attempted to marry/register) at the time of birth;
- They married or entered a registered domestic partnership after birth if: 1) the spouse or domestic partner is on the birth certificate, 2) the spouse or domestic partner made a written promise to support the child, or 3) a court has ordered the spouse or domestic partner to support the child; or
- The birth mother’s spouse or domestic partner consented in writing to conception through donor insemination.
- Intended parent: A person who has lived with the child and has held themselves out as a parent, regardless of gender or marital/domestic partner status is presumed to be a parent;
- An intended parent who conceives a child through gestational surrogacy, regardless of marital/domestic partner status; or
- Any person with a court order recognizing his or her parental rights.
NOTE: It is possible for a court to find that a child has more than two parents in a situation where there are more than two people with a claim to legal parentage and where it would be detrimental to the child to find that the child has only two parents.
As same-sex marriage has only been officially recognized in California since 2013, many couples who were in long-term relationships prior to legally marrying often encounter substantial property division issues upon separation. As California law characterizes marital assets and debts as “community property” only after the date of marriage, same-sex couples often have extensive amounts of property that fall under a “gray zone”: acquired during the relationship but prior to the official marriage date. The courts have been slow to resolve this issue, often leaving it up to the parties to work out themselves how to equitably divide their marital property and debts.