Individuals in a same-sex marriage are granted the same rights and responsibilities as partners in heterosexual marriages. Here’s everything you need to know about the LGBT divorce in California.
The divorce process in California is the same for everyone, regardless of sexual orientation. Same-sex marriages in California may entail complications that heterosexual marriages may not, such as needing to divide assets accrued before the time of marriage. Since same-sex divorce became legalized recently in 2013, same-sex couples may not have been married for as long as some heterosexual couples and thus may have more issues regarding community property.
Divorce Laws Are Applied Equally to Same-Sex Couples
The state of California recognizes marriages between same-sex couples the same way they do with heterosexual couples. Same-sex couples are granted the right to no-fault divorce. Same-sex couples can divorce for irreconcilable differences, and don’t need a further explanation.
Related: Divorce FAQs in California
Filing for Divorce in California
To file for LGBT divorce in California, same-sex couples should:
1. Fill out the necessary forms, such as summons, petitions, and, if you have children, custody/visitation applications.
Have an attorney review these forms after you’ve completed them to ensure they’re accurate and complete.
2. File your forms with the court clerk.
If you are in need of temporary orders such as child/spousal support, bill payments, or protection from domestic violence, then these need to be filled out and filed, as well.
3. Serve the first set of court forms stating that you have started the divorce process.
You cannot serve the papers yourself, but anyone over 18 who is a friend, relative, sheriff, or process server can.
Related: How to Serve Divorce Papers in California
4. Fill out and serve your financial disclosure forms.
The disclosure forms are intended to ensure that you and your spouse know what you own, both together and separately so that assets and debts are divided equally. California law requires that you and your spouse provide each other with written disclosures of what you own and what you owe.
Potential Complications in Same-Sex Divorce
California is not a common law state, meaning courts will not automatically consider property acquired prior to legal marriage as community property, which can make aspects of divorce like property division difficult without a settlement agreement. Most judges will separate assets from the time of marriage, but asset division can become complicated if same-sex couples were together for years before legal marriage. Property obtained before the marriage may be divided separately in divorce.
However, if you and your partner established a legal domestic partnership (LDP) prior to 2013, California may consider you legally married. You may have to terminate both your marriage and the domestic partnership. The length of time you and your partner have been married can have an effect on factors such as alimony and assets to be divided in divorce.
FAQs About LGBT Divorce in California
What happens to children in an LGBT divorce in California?
If you and your spouse have legally-established parentage, establishing parental rights should be no issue. Lacking recognition as your child’s legal parent may be an issue that needs to be addressed in order to establish rights such as custody and visitation in divorce.
Is there an alternative to divorce for same-sex couples in California?
Other options are available to same-sex couples interested in terminating a marriage, such as an annulment or legal separation. Annulments are rare and have specific requirements. Legal separations can help couples live separate lives and maintain the benefits of marriage.
Related: 5 Ways to Get a Divorce in California
Contact Us
If you or a loved one would liek to know more baout LGBT or same-sex couples divorce in California, get your free consultation with one of our divorce attorneys today!