Special Considerations for Same-Sex Divorces

Issues that disproportionately affect gay and lesbians couples in divorce

We have all heard the good news. California no longer recognizes a distinction between same-sex and opposite-sex marriages. Any couple can now obtain a marriage license and wed, regardless of that couple’s sexual orientation. In 2016 the U.S. Supreme Court affirmed marriage equality across the United States.

Even with these ‘wins’, our work is not done. There are issues that affect our gay and lesbian clientele in divorce — that are generally not applicable to heterosexual marriages. We’ve taken a look back at some of our recent cases and provided a list of the most common considerations gay and lesbians spouse’s should think about if they decide to dissolve their relationship.

Short marriage, long cohabitation? In California we simply do not have common law marriage. Even if you were in relationship and living together for 10+ years before you were able to marry, the Family Law system generally looks only at your period of marriage (and/ or domestic partnership) when determining property and support rights and obligations. This means that unless you and your spouse agree to a collaborative approach (or use a seasoned mediator) to dissolve your marriage, your property rights and the length of spousal support will likely only be determined by the length of your actual marriage. If your spouse refuses to consider the length of your cohabitation for purposes of acquiring joint property (such as retirement contributions or purchase of a home), you may want to consider filing (in addition to a divorce action) a Marvin (civil) action requesting property division and/or palimony for the period of time in which you lived together but were not married. Any support obligations originating from your pre domestic partnership years will probably only be addressed in civil court via a Marvin action. Marvin actions are very technical and require an express or implied agreement(s) to support and/or pool your resources/assets. You will want to choose an attorney as not all family law lawyers are familiar and seasoned in these types of actions. What ever you do — move fast — there’s a statute of limitations (usually 2 years) that you don’t want to miss!

Domestic Partnership: If you were or are in a domestic partnership you will need to dissolve BOTH your marriage and your domestic partnership. Dissolving one status does not automatically dissolve the others unless it is included in the order. Usually, this can be accomplished in one legal action but must be done properly. The period in which you were domestic partnered will also be considered by the Family Law court for purposes of property division and support! However, your DP must have been REGISTERED with the state of California. Simply registering in a city will not be considered valid.

Children born before marriage: You’ve likely taken steps to ensure that your child(ren) legally has two parents. If for whatever reason this has not been accomplished, your divorce is your opportunity to ensure that parentage is established legally.

Jurisdiction: In certain circumstances, your domestic partnership or other civil union can be dissolved in California even if you are not a resident. Check with a family law attorney to see if you are a good candidate to ‘divorce’ in California. California provides really good protections to DP’s and it might be advantageous to dissolve your relationship here if possible.

Date of Marriage: Assume the following: you married — then your marriage was deemed ‘unlawful’ (ugh) — then you did NOT remarry once marriage became lawful again. What happens? Well, assuming your marriage was legal at the time and in the place you were married, your same sex marriage should be recognized as lawful back to the date it was solemnized.

While same sex marriage is now legal, it doesn’t mean that all wrongs have been rectified. To the extent that we can help make your divorce fair — we are ready to help.

**Please note that this article pertains to existing California law and is meant for informational purposes only. Please do not make decisions that will affect your future based on things you’ve read in this post. Instead, consult with a Certified Family Law Specialist — It doesn’t have to be us, but be sure to seek out sound legal advice that pertains specifically to the facts of your case.