Same-Sex Divorce Laws in California

Same-sex divorce in California is regulated by the same family law and legal procedure as any other divorce. Couples can divorce to end a California same-sex marriage or a domestic partnership.

Reasons for Same-Sex Divorce in California

California is a no-fault divorce state, which means that neither spouse has to prove that the other did something wrong to cause the divorce.

The most common reason for divorce is irreconcilable differences, which means that the spouses cannot get along anymore, and there is no chance of saving the marriage.

Another reason for divorce is incurable insanity, which means that one spouse has a mental condition that cannot be cured and prevents them from being a part of the marriage.

A reason for divorce is not needed for same-sex divorce in California as long as one spouse meets the residency requirements and files the appropriate forms with the court.

Same-Sex Divorce Eligibility Requirements in California

To be eligible for same-sex divorce in California, the spouses must meet certain requirements related to residency, marriage, and property. Here are some of the main requirements.

Residency Requirements

One of the two following requirements must be met to fulfill these eligibility requirements for same-sex divorce filing in California:

• You and your spouse entered into a same-sex marriage in California; in addition:
  • Either of the spouses has resided in the state for a minimum of six months;
  • Either of the spouses has resided in the county where they are filing for a minimum of three months.
• You and your spouse entered into a same-sex marriage in California, but you are not a California resident, and you reside in a state that does not recognize same-sex divorces. In this case, you can file for divorce in the county where you were married.

Domestic partners registered in California do not need to meet the residency requirement. They can end their partnership in California even if neither of them lives in California.

Marriage Requirements

• You have been married or partners for less than five years.
• It’s been less than five years from the date you married or registered your partnership to the day you split up (called your date of separation).
• You do not have any children together, born or adopted, and neither of you is pregnant.

Property Requirements

• You do not own or lease real estate, such as a house, land, or any other building. There is an exception if either of you rent the place you live in, and your lease will end within a year of your filing for divorce.
• Together, you owe less than $6,000, excluding any car loans, from when you married to the day you split up.
• You have less than $47,000 worth of property together and separately, excluding any cars, from when you married to the day you split up.
• You agree on how to divide your property and debts.

If you meet all these requirements, you may qualify for a summary dissolution, which is an easier and faster way to get divorced or end a domestic partnership. If you do not meet these requirements, you will need to follow the standard divorce process.

Property Division

Whether you qualify for a summary dissolution or not, you will need to decide how to divide your marital property and debts with your spouse. California is a community property state, which means that any property or debt acquired during the marriage or partnership belongs equally to both spouses unless they agree otherwise.

Property or debt acquired before the marriage or partnership or after the date of separation is considered separate property and belongs to the spouse who acquired it.

The spouses can agree on how to divide their property and debts by signing a written agreement (called a marital settlement agreement or a stipulated judgment ). This agreement must be fair and reasonable for both parties.

If the spouses cannot agree on how to divide their property and debts, they can ask the court to decide for them based on various factors. These factors include the duration of the marriage or partnership, each spouse’s contributions, each spouse’s needs, and the best interests of any children involved.

Are There Different Types of Same-Sex Divorce?

Same-sex couples who want to end their marriage or domestic partnership in California may have different options depending on their situation. Here are some of the possible types of same-sex divorce in California.

Divorce

Divorce is the legal process of dissolving a marriage or a domestic partnership and resolving issues such as property division, spousal support, child custody, and child support.

The spouses can get a divorce without a lawyer if they have an uncontested divorce and can fill out the required forms themselves. However, it is advisable to consult with a lawyer if there are complex issues or disputes involved.

Summary Dissolution

Summary dissolution is an easier and faster way to get divorced or end a domestic partnership. It’s less expensive, and there’s not as much paperwork as the standard divorce process.

Annulment

An annulment is a legal process that declares that a marriage or a domestic partnership was never valid or legally existed.

Unlike divorce, an annulment requires one spouse to prove that there was a legal reason (called a ground) that prevented the marriage or partnership from being valid at the time it was entered into.

Some of the possible grounds for annulment are:

• Fraud: One spouse lied or hid something important that directly affected the marriage or partnership.
• Force: One spouse was forced or threatened into the marriage or partnership.
• Incest: The spouses are close-blood relatives.
• Bigamy: One spouse was already married or in a domestic partnership with someone else.
• Underage: One spouse was under 18 years old and did not have parental consent or court approval.
• Incapacity: One spouse was mentally ill, intoxicated, or otherwise unable to understand and consent to the marriage or partnership.

The annulment process involves:

• Filing papers with the court;
• Paying a fee;
• Serving the other spouse with the papers;
• Attending a court hearing; and
• Getting a judgment from the judge.

Legal Separation

Legal separation is a legal process that allows spouses to live apart and resolve some of their issues without ending their marriage or domestic partnership.

Some of the reasons why spouses may choose legal separation instead of divorce are:

• They do not meet the residency requirements for divorce;
• They have religious or personal objections to divorce;
• They want to keep some benefits of being married or partnered, such as health insurance or tax benefits;
• They are not sure if they want to get divorced yet.

The legal separation process involves:

• Filing papers with the court;
• Paying a fee;
• Serving the other spouse with the papers;
• Making an agreement or asking the court to decide on issues such as:
  • Property division;
  • Spousal support;
  • Child custody;
  • Child support.

Legal separation does not end the marriage or partnership. The spouses are still legally married or partnered and cannot marry or partner with someone else.

If the spouses want to end their marriage or partnership after getting a legal separation, they will need to file for divorce and go through the divorce process.

Are There Any Child Custody or Support Concerns for Same-Sex Parents?

Same-sex parents who are divorcing or ending their domestic partnership in California may have some concerns about how to handle child custody and spousal support concerns. Here are some of the main concerns and how to address them.

Child Custody

Child custody refers to the legal and physical responsibility of a child. Legal custody means the right and duty to make decisions about the child’s health, education, welfare, and religion. Physical custody means where the child lives and who supervises them.

In California, there are two types of child custody: joint custody and sole custody. Joint custody means that both parents share legal and/or physical custody of the child. Sole custody means that one parent has legal and/or physical custody of the child.

The parents can agree on a parenting plan that outlines how they will share custody and visitation rights. They can also ask the court to decide for them based on the best interests of the child.

The court will consider various factors when deciding on child custody, such as:

• The age, health, and needs of the child;
• The emotional bond and relationship between the child and each parent;
• The ability and willingness of each parent to care for and cooperate with the other parent;
• The history of domestic violence, abuse, or neglect by either parent;
• The preference of the child, if they are old enough and mature enough to express it.

The court will not discriminate against a parent based on their sexual orientation, gender identity, marital status, or lifestyle choices when deciding on child custody.

The court will also recognize the parental rights of both biological and non-biological parents in same-sex relationships as long as they meet certain criteria, such as:

• Being married or in a domestic partnership with the biological parent at the time of conception or birth;
• Adopting the child or obtaining a court order of parentage;
• Acting as a parent to the child and establishing a parental relationship with them.

Child Support

Child support is the amount of money that one parent pays to the other parent to help cover the costs of raising their child.

Child support is calculated based on a formula that considers:

• The income of both parents;
• The amount of time each parent spends with the child;
• Other factors, such as:
  • Health insurance;
  • Childcare expenses;
  • Special needs.

The parents can agree on a child support amount that is different from the formula as long as it is fair and meets the needs of the child. If they cannot agree, they can ask the court to decide for them based on the formula and other relevant factors.

The court will order child support until the child turns 18 years old or graduates from high school, whichever happens later. In some cases, the court may order child support beyond that age if the child has special needs or is attending college.

The court will not discriminate against a parent based on their sexual orientation, gender identity, marital status, or lifestyle choices when deciding on child support.

Do I Need a Lawyer for a Same-Sex Divorce in California?

Yes, irrespective of the type of marriage, it’s always recommended to seek legal counsel during a divorce. Having a knowledgeable California divorce lawyer from LegalMatch can be instrumental in ensuring that your rights are fully protected and that you receive a fair settlement.

LegalMatch’s highly experienced divorce lawyers understand the unique challenges that can arise in same-sex divorce cases. They can provide you with the guidance and representation needed to navigate the divorce process while minimizing the stress involved smoothly.

When it comes to something as impactful as divorce, you shouldn’t have to go it alone. Contact a LegalMatch divorce lawyer in California today. They will fight for your best interests and help you start your new chapter on the right foot.