What You Need to Know About Same-Sex vs. Straight Divorce in California
Under California law, same-sex couples have the same divorce rights as straight couples do. Here is what you need to know about same-sex vs. straight divorce in California.
California is a no-fault divorce state. This means that both heterosexual and same-sex couples do not have to present evidence of fault in a divorce, such as adultery or abuse, in a California divorce. However, unlike heterosexual couples, same-sex couples may be required to dissolve a domestic partnership.
Differences Between Same-Sex Divorces and Straight Divorces in California
When going through a divorce, same-sex couples may also be required to dissolve a domestic partnership, which is viewed similarly to marriage in the State of California. Many same-sex couples decided to enter a domestic partnership before legally entering marriage after June 2015, when the United States legalized same-sex marriage as federal law.
It may be necessary to dissolve both a marriage and a domestic partnership when going through a divorce, as the couple is bound by both covenants in the State of California. Once either or both of these arrangements have been dissolved, California considers both parties as single and ready to enter a future marriage.
In terms of divorce residency requirements, there is an exception for same-sex couples. If a same-sex couple got married in California and currently reside in a different state that does not terminate same-sex marriages, they can choose to file for divorce in California. This is regardless of whether or not the same-sex spouses meet the residency requirements. However, the same-sex couple must file for divorce in the county in which they were married.
Child custody rights are another difference between same-sex and straight divorces in California, as same-sex couples may face unique obstacles not faced by heterosexual couples. Unless the couple can come to an agreement on a child custody and visitation schedule, the intervention of a judge is required. California courts will take into consideration the biological information of the child, caregiver roles, and other information. For this reason, custody battles for same-sex couples may be more difficult than for heterosexual couples.
Related: Child Custody for Same-Sex Couples in California
Similarities Between Same-Sex Divorces and Straight Divorces in California
Although some differences exist between same-sex and straight divorces, they are more similar than different in California.
Aside from the abovementioned divorce residency requirement exception, same-sex and heterosexual couples generally face the same requirements. Like heterosexual couples, same-sex couples are required to live in the State of California for six months prior to the request of divorce, and at least one person involved must live in the California county in which the divorce has been filed. If these requirements are not met, both heterosexual and same-sex couples can file for legal separation and complete the divorce once they meet the residency requirements.
Related: California Divorce Residency Requirements
Since California is a community property state, same-sex couples, as well as straight couples, will be subject to a 50/50 split on their marital property. This means that everything obtained during the marriage is split evenly, unless the couple has a prenuptial or post-nuptial agreement.
Related: Community Property Laws in California
FAQs About Same-Sex Divorce vs. Straight Divorce in California
Can a same-sex couple with a domestic partnership, but not a marriage, file for divorce?
A same-sex couple with a domestic partnership alone cannot file for a divorce. This may complicate the process of legally dissolving the relationship.
Are the requirements for divorce of a heterosexual couple the same as the requirements for divorce of a same-sex couple?
Yes. The requirements for divorce in California are the same for heterosexual and same-sex couples.
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