Same Sex Divorce in California - Shulman Family Law Group 2

Same Sex Couple Divorce in California

Since same sex marriage is legal in California, it is natural for same sex divorce to be a practice in the state too.

Divorce is basically the termination of a marriage that renders a person free to remarry, if desired. As far as the divorce law in California is concerned, an individual simply needs to inform the court about “irreconcilable differences” with the spouse in order to get a divorce proceeding started. In California, the law is of “no-fault” divorces. Therefore, the focus of the state divorce regulation is on equal division of all assets between the spouses.

The U.S. Supreme Court made a historic decision in June 2015 with regards to the famous Obergefell v. Hodges case: All the legal restrictions against same-sex marriage were removed in the United States. Before the ruling, several gay couples faced multiple challenges in getting a divorce, at least in certain states. Even though same-sex couples had the legal right to get divorced in the state in which they got married, they usually faced a problem if they moved to a different location. Also, majority of the states demand that at least one spouse needs to stay in the state of residence (where the divorced has been filed) for a certain period of time in order for the divorce to be granted.

Issues Related to Same Sex Divorce

The common issues that come up in any divorce case include division of assets (property, vehicles, jewelry etc.), child custody, visitation and support, spousal support, debt responsibility and others.

When a same sex couple files for a divorce, certain complications may arise in all these issues. For instance, child custody is a key area of conflict in same-sex divorce. In this type of marriage, only one parent is actually the biological parent of the child. So unless the couple manages to arrive at a compromise on its own, the courts would have to intervene and look at the biological data and alleged caregiver roles in addition to other relevant legal information to determine child custody.

A big complication that arises in a same sex couple divorce in California is related to the division of assets. It’s been a little less than 5 years since same-sex marriage became legal in California. So what happens in cases that have couples staying together for over 15 years but facing legal prohibition in getting married? A spouse could present a very powerful argument that “equitable” asset division would include at least some of the income and assets that were accumulated in those 15 years and not simply consider the short time that they were legally married.

Domestic Partnership in Same Sex Divorce

Same sex couple divorce in slightly different from regular divorce cases with regards to domestic partnership. In other words, in the case of same sex divorce, the involved parties may also need to dissolve the domestic partnership.

In the state of California, domestic partnerships are seen as similar to marriages. So a same sex couple would have to dissolve a marriage as well as a domestic partnership in case it is legally ruled by both contracts.

Residency Requirements in Same Sex Divorce

As mentioned earlier, it is possible for a same sex couple to get a divorce in California if either of the spouses has stayed for a minimum of six months in the state before filing for a request. Also, one of the spouses has to spend at least three months in the county where the divorce is to be filed.

In case these requirements aren’t met, a same-sex couple can also get a legal separation for a certain period of time.

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