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Same Sex Divorce in California

In June, 2008, the Supreme Court of California ruled that a law prohibiting same sex marriages was a violation of the California Constitution. Almost immediately after this decision, many same sex couples were married and received marriage licenses in California. However, this did not last, because the citizens of California approved Proposition 8 in November, 2008. Proposition 8 approved an Amendment to the California Constitution, banning same sex marriages. (This left many same sex couples in legal limbo, because it was unclear if their marriages were still valid in California.) It also halted any new same sex marriages until 2013.


A lawsuit challenged Proposition 8, asserting it violated the United States Constitution. (Hollingsworth v. Perry.) In August, 2010, the Honorable Vaughn Walker, Chief Judge of the United States District Court, found that Proposition 8 violates the Due Process and Equal Protection clauses of the U.S. Constitution. In February, 2012, the Ninth Circuit Court of Appeals upheld this decision and the decision in the companion case of Perry v. Brown. The parties in Perry sought review of the decision with the United States Supreme Court. In June, 2013, the U.S. Supreme Court ruled that the officials who sponsored Proposition 8 had no legal right to appeal the decision of the District Court, when the appeal was not filed by the public officials of California. As a result, the Supreme Court vacated the judgment of the Ninth Circuit and remanded the case with instructions to dismiss the appeal of the sponsors of Proposition 8. Same sex marriages resumed in California until 2014, when several civil lawsuits were filed, seeking to stop the issuance of same sex marriages.


These issues were all resolved in 2015, when the U.S. Supreme Court handed down its decision in Obergefell v. Hodges. In Obergefell, the Supreme Court held that a ban on same sex marriages violated the Equal Protection Clause of the U.S. Constitution. As a result, after June, 2015, same sex marriage was legal throughout the United States, and all states were required to issue marriage licenses to same sex couples and to recognize same sex marriages from other states. Before Obergefell, only thirty-six states and the District of Columbia recognized same-sex marriages.


Now that same sex marriage is legal, same sex divorce is the natural result. A divorce, or dissolution of marriage, ends the marriage and allows an individual to marry again, if desired. In California, all an individual has to do is advise the court that there are “irreconcilable differences” with his or her spouse. This makes California a “no-fault” divorce state, and the courts try to focus on an equitable division of assets (and custody, if applicable). As discussed below, there are several requirements for filing for divorce in California, regardless of the gender of one’s spouse.


A prerequisite for filing for divorce in California is residency. If either spouse has lived in California for at least six months and in the same county for at least three months, the residency requirement is met. (If neither spouse meets the residency requirement, the couple can still file for a “legal separation” and then file an amended petition seeking a divorce, once the residency requirement is met.) A couple may also qualify for “summary dissolution”, but only if the couple has no children, does not rent or own land, and has minimal debts and assets. Most couples do not qualify for summary dissolution.


Issues that typically come up in divorces include: child custody, support, and visitation; spousal support; division of real and personal property; division of, and responsibility for, debt; and payment of legal fees. In the case of same sex divorce, these typically straightforward issues can become very complicated. A big example relates to child custody rights. Generally, no more than one parent in a same sex marriage is the biological parent. Therefore, unless the divorcing couple reaches its own compromise regarding custody and visitation rights, the courts will be required to consider biological information, perceived caregiver roles, and other legally vague information in determining child custody, support and visitation.


Another complication with same sex divorce is the equitable division of assets. Same sex marriage in California (excluding the temporary stays on the issuance of same sex marriage licenses) has only been legal and available for same sex couples for less than five years. What about the couple has been together for more than twenty years, but were legally prohibited from marrying? A strong argument could be made that an “equitable” division of the assets would, at least to some extent, factor in the income and assets accumulated during the entire relationship, and not just during the time that the couple was legally allowed to marry.


Once the divorce process is started, it is a minimum of six months before the divorce is “final”. Even if the paperwork is filed with and approved by the court in less time, California law does not allow a divorce to become final for six months.

Another potential complication facing a same sex couple seeking a divorce arises out of domestic partnerships, which many same sex couples entered into when marriage was not an option in California. If the domestic partnership was registered in California, the partners have already consented to jurisdiction of the California courts for purposes of ending the partnership. If the domestic partnership was not registered in California, the same residency requirements apply to a domestic partnership that apply to a divorce. Some same sex couples entered into a domestic partnership and then were married when it was legal, and those couples will want to end the marriage and domestic partnership simultaneously.

One alternative to divorce is a legal separation. Some same sex couples may choose this option, because it could have an impact on benefits or for religious reasons. A legal separation means the couple is still legally married, but no longer share a residence or assets. Division of assets could still be decided by the court.


Complicated issues often arise during a divorce, and even more so with a same sex divorce. If you are unsure of your rights or obligations, consult an attorney who is familiar with the issues facing same sex couples.