Special Considerations for Same Sex Divorce in California

While divorce for same-sex couples will be substantially similar as for heterosexual couples, there are still some unique aspects to pursuing a same-sex divorce. While it is unlikely you would face any prejudices from your attorney or in the courtroom, there are a variety of issues that only same-sex couples must consider when going through the divorce process. If you’re considering separating from your partner, an Irvine divorce attorney can counsel you through these issues and ensure you are prepared for the journey ahead. 

Below, we review some of the key issues you may encounter when attempting to divorce from your same-sex spouse. 

The Duration of Your Marriage Must Be Determined

California courts will place importance on the duration of your marriage in order to determine the amount of alimony or spousal support you are entitled to, as well as a marker that establishes what would be considered ‘marital’ property for an equitable division of your assets. Because same-sex marriage wasn’t recognized until 2013, determining the duration of your marriage is a little more complicated: Generally, a court will consider the time you spent cohabitating as a domestic partnership in order to adequately calculate what you’re entitled to in a divorce. 

Retirement Assets Must Be Considered 

Same-sex couples may need to take additional steps in order to divide their retirement assets during a divorce if it is found that these assets are considered community property. If your retirement plan states that a ‘spouse’ may only be a person of the opposite sex, then you will have to contact the administrator and request a revision under the Defense of Marriage Act. Your Irvine divorce attorney can assist with this process. 

Accessing Records Might Be Difficult

While it is now required that companies make records available to same-sex spouses, it is not uncommon to encounter obstacles. Particularly in instances where your former spouse failed to voluntarily disclose records or otherwise gave you permission or access to them, you may have a hard time convincing administrators that you, in fact, do have rights to this information.

Parental Rights Need to Be Addressed

If you and your partner adopted a child as part of your marriage, navigating child custody can be especially difficult if parental rights haven’t been established. In heterosexual couples, the father is automatically presumed when he is married to a child’s mother. However, same-sex couples usually adopt children and therefore there is no automatic granting of parental rights. Instead, same-sex couples who have adopted children must establish parental rights by taking steps to legally recognize their guardianship. Your Irvine divorce attorney can walk you through this process in order to prepare for child custody and visitation agreements. 

Hire an Irvine Divorce Attorney to Navigate These Issues

While these issues can be cumbersome to get around, obtaining an attorney’s counsel will make it much easier. An Irvine divorce attorney with experience with same-sex divorce can tackle many of these obstacles for you. Contact our office today.

Frequently Asked Questions

What is different about a same-sex divorce in California?

The law is identical. The Family Code applies without regard to the spouses’ sexes, so the grounds, disclosure requirements, property rules, support analysis, and custody standard are the same. The differences arise from history rather than law: many couples were together for years before marriage was available to them, some registered as domestic partners first, and some married in one state while living in another. Determining which date and which status governs is frequently the largest issue in the case.

How is a long pre-marital relationship treated for property purposes?

Community property generally begins with the marriage, or with registration as domestic partners where that came first, rather than with cohabitation. That means assets accumulated during a long pre-marital period are ordinarily separate property, even where the couple functioned as a family throughout. Claims can still arise from agreements between the partners or from one partner’s documented contributions to property titled in the other’s name, but they must be proved rather than assumed from the length of the relationship.

What happens if the couple also registered as domestic partners?

Both statuses have to be resolved, ordinarily in a single proceeding. A registered domestic partnership does not lapse on its own; it must be terminated, either through a summary procedure where the statutory conditions are met or through a dissolution. The registration date also frequently controls when the community estate began, which can add years of community property compared with the marriage date. A partnership left in place continues to carry legal consequences, so its status is worth confirming rather than assuming.

How is custody handled where only one spouse is biologically related?

On the ordinary best interest standard, once legal parentage is established, and establishing it is the threshold question. The strongest positions rest on a parentage judgment, a second-parent adoption, written consent to assisted reproduction executed before conception, or the presumption arising from the child’s birth during the marriage. Parentage can also be established where a person received the child into their home and openly held the child out as their own. Once legal parentage exists, biology carries no additional weight.