For same-sex couples, the right to marry comes with the right to divorce. Though no one enters a marriage intending to divorce, it is a necessary process for married couples who understand that marriage is no longer the best fit for them.
While many aspects of divorce proceedings in California are the same for same-sex couples and heterosexual couples, there are certain aspects of the law that are particularly nuanced with respect to same-sex couples. Some of the differences can be advantageous for same-sex divorce, while others reflect the biases against same sex couples that are still ingrained in divorce law.
Child Custody Arrangements
The most contentious issue of divorce cases involving children tends to involve child custody arrangements. In the state of California, both parents are able to legally obtain parental rights of their children. In divorce proceedings involving same-sex couples who both have parental rights, both spouses are typically considered with custody arrangements. However, in marriages in which only one parent has parental rights, a judge may consider the biological parent as having more rights in the custody arrangement. Similar to heterosexual divorce litigation, factors involving parental roles and relationships with the child are considered as well.
When it comes to alimony, judges have the authority to treat same-sex couples differently than heterosexual couples. This differentiation isn’t due to biases within the law, but rather is due to the fact that many same-sex couples were been living together for years prior to being able to become legally married. In the case of one spouse being financially dependent on the other for a significant period prior to the marriage, the judge may factor that time into the alimony arrangements.
Dividing Retirement Accounts
While the division of retirement accounts is rather straightforward with heterosexual couples, it is often a convoluted process with same-sex litigation.
Another layer that further complicates same sex divorce in California is if the couple obtained a domestic partnership prior to their marriage. If so, then the couple will need to terminate the domestic partnership in addition to ending the marriage. While this process is streamlined for heterosexual couples, it serves as another hurdle to overcome with same sex divorce.
Same Sex Divorce in California
In order to get divorced in California, you must meet California’s residency requirements. Either you or your spouse must have lived in:
- The state of California for the last 6 months,
- The same county where you plan to file for divorce for at least the last 3 months.
If you and your spouse have been in California for at least six months but have lived in different counties, you can file in either county. If you are unable to satisfy the residency requirement, you have the option to file for a legal separation. After the required time has passed and you qualify for a divorce, your attorney can file an “amended petition” to request a divorce decree instead.
How to Facilitate a Smoother Same Sex Divorce
Since same sex divorce is a new area of practice, there are still many gray areas of the law that are open to interpretation. Due to the ambiguous nature of same sex divorce law, it is recommended to hire a same-sex divorce lawyer who is experienced with divorces between spouses of the same sex. Our team of qualified lawyers at LPEP represents one of the largest family law firms in San Jose, California. Contact our offices here to schedule a free 30-minute consultation in which you will learn your recommended course of action to protect your rights in your divorce litigation. You can also learn more about same-sex divorce here.