Family Law Guide for LGBTQ Partners and Spouses in Orange County, CA

Are You Thinking About Starting a Family, Getting Married or Getting Divorced? Here’s an Overview of What You Need to Know

LGBTQ couples primarily face the same issues as opposite-sex couples when it comes to starting a family, getting married, or getting divorced or separated in Orange County, CA. However, some unique issues remain—and it is important for LGBTQ couples to know where these issues exist and how to overcome them. This Family Law Guide for LGBTQ Partners and Spouses in Orange County, CA provides an overview of what you need to know.

Like most legal matters, LGBTQ family law matters can be complicated, and your options and rights can depend heavily on your unique family circumstances. As a result, while this guide is intended to be helpful, it is not a substitute for personalized legal advice. Before you start a family, get married or bring your relationship to a close, you should consult with an attorney.

Starting a Family

Legal Considerations for Starting a Family as LGBTQ Parents

Regardless of the option you and your spouse or partner choose, there are some important additional legal considerations you will need to address when starting a family in Orange County. Some examples of issues you may encounter include:

Establishing Parentage – Under changes to California law adopted in 2019, LGBTQ partners and spouses are entitled to a presumption of parentage in many cases. Section 7540 of the California Family Code provides that “the child of spouses who cohabited at the time of conception and birth is conclusively presumed to be a child of the marriage.” When the presumption in Section 7540 does not apply, LGBTQ couples can establish parentage through a Voluntary Declaration of Parentage.
Financial Responsibility – Parents have a shared responsibility to financially support their children under California law. Outside of the marital context, if one parent fails to provide adequate financial support, it is possible to enforce that parent’s financial responsibility through an order for child support.
Dealing with Questions Regarding Parentage – Unfortunately, LGBTQ parents are still likely to encounter questions regarding their parentage from time to time. While it will not be possible to avoid these questions, being prepared to address them can help avoid unwanted issues. An attorney can provide you with appropriate documentation based on the option you choose for starting a family and how you and your spouse or partner establish parentage.

Getting Married

Thanks to California’s long-standing recognition of same-sex marriage and the U.S. Supreme Court’s decision in Obergefell v. Hodges, LGBTQ couples have no issues when seeking to obtain a marriage license in Orange County. LGBTQ individuals have the unquestionable right to marry, and there are no material legal distinctions between opposite-sex and LGBTQ marriages under California law.

With this in mind, from a legal perspective, one of the most important considerations for LGBTQ partners (and opposite-sex partners) is whether to enter into a prenuptial agreement. Prenuptial agreements can service a broad range of purposes, including:

Protecting the assets each partner acquired prior to the date of marriage
Establishing parameters regarding shared finances and responsibility for financial management
Clarifying responsibility for specific debts incurred prior to or during the marriage
Specifying a method for resolving disputes that arise during the marriage
Providing for financial support and/or distribution of assets in the event of divorce

While LGBTQ partners of all means can benefit from entering into a prenuptial agreement, utilizing a prenup is particularly important for wealthy and high-income individuals. Having a prenuptial agreement can be important both during and after a marriage (whether the marriage ends due to death or divorce), and it is certainly worth discussing your options with an attorney.

Getting Divorced or Separated

While no one plans to get divorced or separated, many relationships end earlier than initially anticipated. Similar to starting a family and getting married, LGBTQ couples in Orange County have the same basic rights and responsibilities as opposite-sex couples when it comes to getting divorced. For an overview of the issues LGBTQ couples will encounter during a divorce or separation, you can read:

FAQs: Legal Considerations for LGBTQ Partners and Spouses in Orange County, CA

What is different about adopting for LGBTQ couples in California?

There are no significant legal differences between adopting as an LGBTQ couple and adopting as an opposite-sex couple in California. The law provides equal protection for all married couples, and California has adopted nondiscrimination protections for prospective LGBTQ parents.

What is different about getting married as an LGBTQ couple in California?

California law also provides equal protection for LGBTQ couples and opposite-sex couples seeking to marry. Therefore, you should not encounter any issues when seeking to marry in California—and if you do, you should consult with an attorney promptly.

Will our LGBTQ marriage be legally recognized outside of California?

Under the U.S. Supreme Court’s decision in the 2015 landmark case of Obergefell v. Hodges, all 50 states must now recognize the legality of same-sex marriages. As a result, no state can lawfully deny equal protection to any married couple because the spouses are LGBTQ.

Does the federal government (including the IRS) recognize same-sex marriage?

Yes, the federal government recognizes the legality of same-sex marriages, and the IRS has recognized same-sex marriages since 2013. The IRS has published a list of FAQs for same-sex spouses, which clarifies that opposite-sex and same-sex couples are treated equally for federal income tax purposes.

Does my (or my spouse’s) employer have to recognize our same-sex marriage?

Employers in California must recognize their employees’ same-sex marriages. California and federal nondiscrimination laws also prohibit employers from discriminating against employees on the basis of their sex, gender, sexual orientation, gender identity, gender expression and marital status.

Resources for LGBTQ+ Partners and Spouses

If you have questions about any family-related legal issue, our Orange County family law attorneys are here to help. To schedule a confidential consultation at Seastrom Tuttle Murphy Dockstader, please call 949-474-0800 or request an appointment online today.

Common Questions About Family Law for LGBTQ Couples in California

Is the divorce process different for same-sex couples in California?

The process and the substantive law are the same. California family law is written without reference to the spouses’ sexes, and dissolution proceeds identically. Where these cases genuinely differ is in the history that precedes the marriage. Many couples were together for years, sometimes decades, before marriage was available to them, and some registered as domestic partners first. Determining which period counts for property and support purposes is frequently the central issue, and it has no analogue in most other dissolutions.

How is property handled for a couple who were together long before they could marry?

This is the recurring difficulty, and the answer depends heavily on the facts. Community property generally begins with the marriage or with a registered domestic partnership, so assets accumulated during a long pre-marital cohabitation are ordinarily separate, even where the couple functioned as a family throughout. Where the couple registered as domestic partners, that date typically controls instead. Claims may also arise from agreements between the partners or from contributions one made to property held by the other. Establishing the correct starting date, and documenting the pre-marital arrangement, often determines more of the outcome than the division itself.

What determines legal parentage when only one parent is biologically related?

Several routes can establish it, and which one applies matters enormously. A child born to a married couple is presumed the child of both spouses. Parentage can also arise where a person received the child into their home and openly held the child out as their own. California law provides for parentage where a person consented to assisted reproduction with the intent to be a parent, and consent documented in writing before conception is considerably stronger evidence than testimony afterward. Second-parent adoption or a parentage judgment provides the clearest protection, particularly for a family that may live in or travel to states with less settled law.

Does a registered domestic partnership need to be dissolved separately?

It has to be addressed, and how depends on the history. A registered domestic partnership does not simply lapse; it must be terminated, either by a summary procedure where the statutory conditions are met or by a dissolution proceeding. Some couples registered as domestic partners and later married each other, in which case both statuses must be resolved, ordinarily in a single proceeding. Others registered, separated informally without terminating, and moved on. A partnership left in place continues to carry legal consequences, including community property accrual, which is worth confirming rather than assuming.

About the Firm

Seastrom Tuttle Murphy Dockstader is a family law firm in Irvine representing clients throughout Orange County, and in Los Angeles County. The firm practices family law exclusively. Its attorneys include Fellows of the American Academy of Matrimonial Lawyers and of the International Academy of Family Lawyers, and attorneys certified as specialists in family law by the State Bar of California Board of Legal Specialization. Call 949.474.0800 to discuss an LGBTQ family law matter with the firm.

Family Law Help for LGBTQ Couples