Same Sex Divorce

Same Sex Divorce

While the historical and current challenges and inequalities of same-sex marriages in the U.S. is a highly discussed topic, the challenges of same-sex divorce are not. Many same-sex couples who have decided to part ways are unable to find helpful information regarding how to obtain a same-sex divorce. Every state has different nuances pertaining to same-sex divorce and it is imperative that couples research the laws that rule their state.

In California, the right to marry comes with the right to divorce and same-sex couples have the same rights regarding their divorce as heterosexual couples. There are particular instances, however, in which judges can consider alternative factors in a divorce that heterosexual couples cannot. This is considered beneficial for same-sex couples and accounts for factors such as the amount of time in which same-sex marriage was not legal, and the nuances in parental rights with same-sex couples.

Following the Supreme Court decision, Obergefell v. Hodges, same-sex marriages are treated the same as heterosexual marriages in California. The Obergefell decision was passed in 2015, and stated that marriage is a fundamental right protected by all couples. Accordingly, same-sex spouses have the same rights as heterosexual couples, which entitles them to be able to be divorced. While states interpret these decisions differently, same-sex couples in California have the same rights as heterosexual couples.

What Are The Requirements To Get A Same-Sex Divorce In California?

California implemented a “no-fault” divorce law, which means that one spouse is not obligated to prove that the other spouse was at fault in order to end the marriage. Instead, the couple or individual just needs to state that they have irreconcilable differences and that the marriage is no longer working. This also means that one person can end the marriage even if the other person does not wish to end it.

Like all couples, same-sex couples must meet the residency requirements of living in California. Individuals must have lived in the state of California for at least six months prior to filing for divorce. Additionally, individuals must have resided in the county that they are filing for divorce in for at least three months prior to filing.

What If I Am Unable To Satisfy The Residency Requirement?

If you are unable to satisfy the residency requirement, then you have the option to file for a legal separation. A legal separation is when couples go through the process of legally dividing their assets but maintain their marital status. After the required time has passed and you qualify for a divorce, your attorney can file an “amended petition” for you and request the court for a divorce decree, which is the legal document that officially terminates the marriage.

Are There Exceptions To The Residency Rule?

There are, however, exceptions to the residency rule. If you were married in California but now live in a state (or states) that refuses to dissolve a same-sex marriage, you can file for divorce in California regardless of the residency requirements. However, you must file for divorce in the county where you were married (received your wedding certificate).

It is important to keep in mind that if neither party lives in California, the court may not be able to make orders regarding property and debt, spousal support, or child issues. If you find yourself in that position, it is even more important that you speak with an attorney.

Why Do People File For A Divorce?

There are many reasons why people might seek a divorce. As gleeful and in love as people are when they walk down an aisle, approximately half of marriages end in divorce. Sometimes it is as simple as a barrier in communication or different visions for the future. Some spouses find that they don’t bear animosity towards each other and are able to file for a collaborative divorce process, a process that is typically less contentious and more affordable. To learn more about collaborative divorce, visit here.

Not all spouses are able to tackle the division of assets collaboratively, however. Oftentimes separation brings forth animosity, and couples find that they do not have a similar vision of how to divide assets and create child custody arrangements. If this is the case, then it is highly recommended to speak with a qualified divorce and family law attorney prior to filing a divorce. Additionally, if your divorce involves factors that further complicate the issue, then it is all the more recommended to invest in a reputable lawyer.

What Factors Complicate Divorce Proceedings?

Contrary to popular belief, not all divorces require lengthy litigation and judicial hearings. There are circumstances, however, that may create complex divorce litigation and typically result in longer proceedings.

Domestic Violence

Though rarely talked about, domestic violence is the cause of many divorce cases. A divorce involving domestic violence makes the legal process more complicated, as there are also other litigation factors involved such as restraining orders or pending charges against the accuser. Additionally, victims of domestic violence may be hesitant about being in a setting with their ex and may wish to not be present during the proceedings. If you are facing a divorce involving domestic violence then it is imperative to hire a qualified divorce attorney so that you can ensure that your rights are best protected.

Child Abuse

Child abuse is another factor that can result in a messy and complicated divorce. If one parent is accused of child abuse, it will make it difficult to obtain custody or visitation rights. Due to the complexity of divorces involving child abuse, it is essential that people speak with a reputable family law lawyer prior to the divorce.


Some spouses decide to end a marriage in order to get away from drug or alcohol abuse. With addiction cases, judges tend to limit custody or visitation rights of a parent and require the parent to complete addiction therapy courses in order to maintain parental rights. Couples facing a divorce with addiction factors are highly advised to invest in a divorce attorney who has ample experience with addiction cases.


Divorces involving adultery tend to be more contentious than most, and often require a lengthier process to resolve disputes and the division of property. There is a misconception that extramarital affairs directly affect alimony payments, however, judges would not adjust the payment agreement unless one person spent lavishly on their affair or if the financially dependent person plans to live with the person afterwards, thus making them less dependent on the money. Contrary to popular belief, affairs do not affect child custody unless the judge determines that the affair caused the child severe emotional harm.

How Will A Divorce Impact Your Life?

Due to the emotional and financial repercussions of getting a divorce, it is important to consider all facets of how your life may be affected. Divorcing your same-sex spouse will dramatically change both of your lives. Your assets will be divided, your time with your children will be divided, and you may have to make child support or alimony payments after the proceeding.

Child Support

Child support payments are arranged so that the parent with custody has help meeting the financial needs of the children. Payments are dependent on the parent’s income and costs of providing for the child. The cost of child support payments is something that an individual should consider prior to a divorce.


Alimony was created with the intention of making sure that financially dependent spouses don’t face financial ruin after the divorce. Financially dependent spouses are spouses who rely on the other spouse for financial support. Alimony payments may be made to the financially dependent spouse and paid for by the spouse earning the higher income. While not all divorces result in alimony payments, they could likely be a factor in your case. Contrary to popular belief, even marriages in which both spouses earn income can be impacted by alimony payments down the road. Due to the nuances in the law, it is important to consult an attorney to understand how alimony payments may impact your divorce.

Division Of Assets

All couples who are married in California are married under the communicative property law, including same-sex couples. It dictates that all property accumulated during the marriage should be divided equitably upon divorce. While prenuptial agreements would counter this law, most spouses are required to equitably divide their assets. Since many assets have sentimental value or are not easily divided in half, such as a car or house, the division of property is not as straightforward as one might assume. Additionally, divorces with high-net-worth couples tend to have significantly lengthier litigation due to their accumulation of assets and property.

Visitation And Child Custody

While joint custody is becoming increasingly more common, your relationship and time spent with your child will most likely be heavily impacted by your divorce. Judges make custody arrangements and visitation decisions in the best interests of the children, but you or your spouse might likely find the decision unfair. Visitation times might be highly restricted, difficult to logistically arrange, require substantial travel time, and place unwanted stress on children. Additionaly, with same-sex child custody decisions, judges may take the biological parent of the child into consideration.

Parental Relocations

One caveat of a divorce that some parents overlook is the impact that relocating may have on children. While exes who do not have children may easily relocate, parents with child custody arrangements find that they are bound to live close to their children. It is important to understand that even after a divorce, you might find that you have to live close to your ex in order to maintain positive relations with your children. The difficulty of relocating after a divorce with children is a factor that should not be overlooked.

Free Consultation For Same-Sex Divorce In The Bay Area

If you are facing a same-sex divorce in San Jose or Santa Clara or the surrounding areas, then LPEP has the resources you need to protect your assets and parental rights. Our dynamic team of qualified divorce and family law attorneys have ample experience with same-sex divorce litigation and collaboration. With a focus on high-net-worth divorce proceedings, we offer our clients comprehensive support.