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Understanding Same Sex Marriage and Divorce

The state of California grants marriages between couples of the same sex. The state will also grant a divorce to the couple if they’ve lived in California for six months or if they got married in the state and they cannot get a divorce where they currently live. If you need any guidance on same-sex marriage or divorce, San Diego Divorce Attorney is here to help you. We have experience in family law and we will guide you through the process.

History of Same-Sex Marriage Laws

Civil Rights and Marriage Equality

The thought that couples of the same sex should have similar matrimonial benefits as couples of the opposite sex has been an issue of civil rights. Based on this argument, the concept of the Constitution on Due Process and Equal Protection requires that couples of the same sex should not be treated differently than married couples of the opposite sex. The decision by the Supreme Court in June 2015 in Obergefell v. Hodges states that couples of the same sex have the right to marry and have their marriages recognized countrywide based on Constitutional Clauses on Equal Protection and Due Process.

Family Values and Moral Rights

Some people may view same-sex marriage as a moral issue. Despite the Constitution prohibiting the establishment of religion, they argue that the marriages go against traditional Judeo-Christian ethical values. They also argue that same-sex marriages undermine family values. Marriage is founded on the need for procreation which is not biologically possible for couples of the same sex. To rebut this argument, those supporting same-sex marriages argue that marriage has been granted to couples of the opposite sex who choose not to have children or cannot have children.

Legal Benefits of Marriage Equality

The argument over same-sex marriages goes beyond just the right to marry. Couples of the same-sex also seek the same health care benefits, the same community property rights, the same tax, and estate advantages and the same rights to surviving children as couples of the opposite sex. The ruling of the Supreme Court in Obergefell resolved these issues in favor of the recognition of marriage between the same-sex, extending the right to marry and the benefits to couples of the same-sex countrywide.

Proposition 8 and the Defense of Marriage Act

Prop 8 was a ballot proposition initiated by those against same-sex marriage to prohibit it in California. When Proposition 8 was passed, those against it filed a complaining lawsuit that it violated Constitutional Clauses on Equal Protection and Due Process. Private Parties which supported the Proposition and put it on the ballot wanted to defend the law on same-sex marriage but California state refused.

The Supreme Court ruled that private parties didn’t have the standing to defend a state constitutional amendment where the state itself refused to defend it. Consequently, the case was dismissed because it lacked standing. As a result, Proposition 8 was annulled and many people feel that that decision set out the tone for future decisions.

Likewise, in 2013 the Supreme Court ruled unconstitutional some important parts of the Defense of Marriage Act. The Defense of Marriage Act was signed into law in 1996 by President Bill Clinton and barred federal recognition of marriage between couples of the same sex for the purpose of insurance, immigration, receiving tax and other benefits. The court annulled the federal law because it denied couples of the same-sex the equality liberty assured by the Fifth Amendment.

California Laws on Same-sex Marriage

Same-sex marriage was legalized in California in the year 2013, after a ruling by the Supreme Court of the United States. The issue of same-sex marriage was resolved in California after many rulings by the federal and state courts and an initiative by voters which was ruled unconstitutional. On 26th June 2015, the Court made a ruling requiring all states to permit same-sex couples to get married and to acknowledge marriages that had occurred outside their home state.

After the decision by the Supreme Court, couples of the same sex can use the same steps that couples of the opposite sex use to get married in California. The first step is to fill out a marriage application form and show a photo identification which proves that you are both above the age of 18 years. After the application, you’ll need to get a marriage license from the county office. The marriage license is legally acceptable for 90 days. You do not have to be a resident of California to get married in California, same-sex couples who live in other states might as well get married in California.

Couples that got married in 2008 after the Supreme Court ruled that the ban on same-sex marriage in the state was unconstitutional and before Proposition 8 was brought into effect don’t need to re-marry as the state acknowledges those marriages as legally binding. California state also acknowledges same-sex marriages between couples who got married legally in other jurisdictions.

Registered domestic partnerships are also still recognized by the state. Registered domestic partnerships do not make the couple automatically married. Couples who had registered for domestic partnerships but wish to get married don’t need to terminate the partnership before getting married.

What Are the Requirements for Same-Sex Marriage in California?

For you to get married in California, you and your spouse must visit the Registrar-Recorder or County Clerk’s office in any county of California and get a marriage license. After getting the license, the ceremony is then conducted by a member of the clergy, a judge or a person is given authority to solemnize a marriage in the state of California within 90 days.

Both partners must present themselves before the office of the county and fill out a marriage application license. The couple should issue an identification picture issued by the government and show evidence that both are 18 years or older. If both or either of the partner is less than 18 years then a different procedure is to be followed. In some counties, the application for a marriage license is posted online so you can fill them before arriving at the office of the County Clerk. The application fee differs according to the county but it’s usually not more than $100. No health certificate or blood test is required.

The marriage license is only valid for 90 days therefore, you must get married within 90 days. You can get married anywhere in California. The person conducting your ceremony must have the authority to solemnize marriages in California and must complete and sign your marriage license.  Additionally, a witness who is 18 years or more must also sign the marriage license. The license is now your official certificate of marriage and must be taken back to the county where you obtained it for filing within 10 days of your marriage ceremony. It’s also possible to conduct your marriage ceremony at the county office the same day that you get your marriage license but you’ll pay an extra cost.

Persons Authorized to Marry You

In the state of California, people legally given authority to solemnize your marriage include: retired and active court judges, assistant court commissioners and court commissioners, members of the clergy, retired and active civil marriage commissioners, active or retired justice of the Supreme Court, judges or retired judges, state legislators, magistrate judges or retired magistrate judges of federal courts, constitutional officer of the state and Congress members representing a district within the state.

Is a Marriage License for Same-Sex Couples a Public Record?

Yes, a marriage license is a public record. However, in the state of California, same-sex couples can apply for a confidential marriage license. The only added requirements for getting this license is that the couple must not be less than 18 years of age, they must be living together when applying for the marriage license and they must sign an affidavit on the license confirming those facts. The couple must get married in the same county where the marriage license is issued. The marriage license is a confidential record, registered at the office of the County Clerk in the county where the license was issued. The only people allowed to get copies of the marriage license are the spouses. Any other person wishing to get copies of the confidential marriage license must obtain a court order allowing them to do so.

When a couple receives a confidential license, the only information that will be available in public is the fact that each person is married, information such as their names and address, when and where they got married is not available in the public.

Does California Recognize Same-Sex Marriages Conducted in the Other States?

The state of California recognizes same-sex marriages that legally took place in other jurisdictions irrespective of when the marriage took place. Your relationship will be treated as a legal marriage and not as a domestic partnership and therefore you do not need to re-marry in California.

What Happens to the Immigration Status of Same-Sex Couples in Bi-National Relationships who want to Get Married in California?

Based on your marriage, there’s a legal way for you and your spouse to apply for permanent immigration status in the United States, this is because the Defense of Marriage Act Section 3 has been ruled unconstitutional. Therefore, in most cases, if you get married or you’re married, your spouse can sponsor you or you can sponsor your spouse to apply for a green card which leads to a permanent legal residence.

The options for families differ from case to case depending on various factors for example:

  1. Whether you and your partner are together or apart
  2. Whether you and your partner are married
  3. Whether you and your partner live together in the U.S. or abroad

In case of families together in the U.S. whether the partner who’s not a U.S. citizen arrived in the U.S. after being inspected by an immigration officer or whether they entered without inspection.

A qualified immigration lawyer should be able to give you legal advice on immigration benefits before taking steps to get married in California.

Protection of Same-sex Married Couples from Discrimination

Do clergy members or religious institutions have to perform same-sex marriages?

No. Clergy members and religious institutions are free to decline performing marriages for anyone they want. Some faiths do not allow couples of the same sex to get married within their faith; though a growing number do. The government doesn‘t discriminate against couples of the same-sex by barring them from having a civil marriage in a legal institution established and controlled by the government. Under the current laws in California, all couples notwithstanding their sexual orientation are free to choose whether they want to be married by a civil servant like a judge, an authorized deputy or clergy in a welcoming community of faith.

Can an employer refuse to employ me for getting married to my partner of the same sex?

No. California laws forbid discrimination of employment based on one’s sexual orientation, marital status, gender expression, and gender security. If your prospective employer or employer is a religious association or corporation, then the answer may be more complicated under some limited circumstances. In case you are facing any employment issues related to marrying your partner of the same sex, you may contact any of the LGBT legal organizations.

Can your employer fail to recognize your marriage to your same-sex partner as valid or deny to give your same-sex partner employment benefits given to heterosexual spouses?

Generally, no. California laws regarding benefits prohibit employers from discrimination based on gender identity or sexual orientation when administering employment benefits. Additionally, federal laws on employment forbid employers from giving workers dissimilar benefits based on their sex, which protects spouses married to partners of the same sex. If you are facing problems related to employment benefits, please contact any of the LGBT legal organizations.

Regarding health benefits, because the Supreme Court legalized marriage between couples of the same-sex throughout the U.S. and because the Court annulled Section 3 of the Defense of Marriage Act, if your employer’s health plan covers your spouse, then you and your spouse qualify for additional federal protection as follows:

  • The health insurance value for your spouse will not be treated as taxable income to you as the employee or your spouse.
  • If you lose your job, your hours are reduced or in case you get divorced or separated, your spouse and children have the right to remain on your health plan. This is referred to as COBRA continuation coverage or COBRA coverage. Whereas your employer allows you, your spouse and children to remain on the health cover, you may be required to pay the costs of the benefits.
  • Whilst many health plans will only allow you to enroll during specific times, a marriage or divorce are qualifying events that will allow you to enroll or unenroll outside those specific time periods.

However, the above protection only applies to couples who are legally married and not those in registered domestic partnerships but are not legally married.

Parental Rights for Same-sex Couples

California outlaws foster care and adoption agencies from discrimination based on gender identity and sexual orientation. Although international adoption uses different rules and most countries do not allow same-sex couples to adopt.

Parents who were in a domestic relationship or were married when their child was born can do a confirmatory adoption which is cheaper and does not usually require a background check, a home visit or court hearing. For other married couples, if the child was born before the relationship, the other spouse can apply for adoption as a step-parent provided the other parent agrees or if their rights are stopped.

In some occasions, the state allows children to have more than two legally recognized parents. If you are in such a situation, it’s important to adopt in order to protect the rights of all the parents involved.

Laws on Same-Sex Divorce

Before filing a petition for divorce, couples of the same sex in California should have at least lived in the state for six months. A law was passed in January 2012, that permits couples who got married in California but later went to live in other states which do not allow same-sex marriage, to divorce in California without meeting the requirement for residency.  Therefore even though they cannot get a divorce in the state where they currently reside, same-sex couples can file a divorce through the California courts.

Find a San Diego Divorce Attorney Near Me

Divorce can be a stressful process whether it’s a marriage between couples of the same sex or the opposite sex. If you are going through a divorce, you should seek the assistance of a skilled attorney who will give you advice based on your specific circumstance. San Diego Divorce Attorney understands that each divorce case is unique and we know how the cases are handled by judges and courts in San Diego. We will use our knowledge and experience to work towards a positive outcome for you. Call our San Diego Divorce Lawyer at 858-529-5150 to schedule a confidential consultation with our divorce attorney.


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