One of the unfortunate realities of same-sex marriage is that some couples may also require divorces. It is true that some same-sex marriages end up in divorce, which is, of course, the same as the heterosexual marriage divorce rate. Thankfully, under California law, same-sex couples have the same rights upon the dissolution of their marriage as opposite sex couples do.
Despite the fact that each type of marriage should be treated equally under the law, there are a few judges and court personnel who may bring certain prejudices with them to the case. As a result, you should always consider hiring a lawyer to ensure that your rights are fairly and adequately represented throughout your divorce proceedings. Even if your separation is amicable, each partner should still hire their own legal counsel to be sure their wishes are upheld by the courts.
California is what is known as a “no fault” divorce state. Basically, this means that the party asking for the divorce does not have to prove wrongdoing on behalf of their spouse. Instead, they can simply tell the court that the parties suffered from irreconcilable differences, meaning they could no longer get along. This is often the quickest way to obtain a divorce, as there is no evidence for the court to review.
No fault divorces work both ways. If your spouse has committed adultery or treated you with cruelty, there is no mechanism for the family law courts to penalize them for that behavior. The offending party does not lose more property nor are they ordered to pay more in support for any of those actions.
There is no requirement for both parties to agree that the marriage is over. By law, only one spouse needs to file the paperwork requesting the divorce. Once this occurs, the other party cannot stop the process. They can dispute any erroneous facts, but they cannot halt the proceedings simply by failing to participate. If this tactic is tried, the courts still rule in favor of the party requesting the divorce, giving them a default judgement in their favor. Spouses who try to delay proceedings by filing excessive motions, affidavits, and other procedural paperwork are often punished by the courts for this behavior.
Dissolution of Domestic Partnership
In some cases, you may have to dissolve your domestic partnership as well as your marriage. Before same sex marriage was legal, couples could register as domestic partners, granting them some of the same rights as married couples. Those who choose to get married after registering as a domestic partner need to legally dissolve both unions before they can enter into a future marriage.
There are two ways for domestic partners to register the breakdown of their relationship:
- Dissolution – a process by which the parties go through the courts to end the relationship
- Termination – a process that goes through the California Secretary of State
- The ideal process for you depends on the details of your situation.
Dissolution of a domestic partnership is also known as a divorce. This process uses the court system to legally end the relationship. This process is suitable for those who need some guidance from the courts to decide important legal issues. If you disagree with the outcome of the dissolution proceeding, you are free to file an appeal or request a hearing.
If a couple meets the following requirements, they are eligible for a shortened dissolution procedure:
- Married less than five years
- There are no children of the relationship
- There are no disputes as to the division of process
This shortened process is only available to same sex couples who are married as well as in a registered domestic partnership.
A domestic partnership can also end by way of termination. This process goes through the Secretary of State, and is mostly a paperwork proceeding. Clerks review your filings, and subsequently grant the termination, or not, depending on the contents of the paperwork. There are no appeals or hearings granted in termination cases. This process is best suited to those who are in complete agreement on all issues.
There are a few legal requirements you or your spouse must meet in order to qualify for a divorce:
- You or your spouse must have lived in California for at least six months
- You or your spouse must have lived in the county in which you plan to file for three months
- You are able to or are in the process of dissolving or terminating any relevant domestic partnerships
These legal requirements are non-negotiable, meaning that the courts cannot be petitioned to bend the rules. If you do not yet meet those requirements, you still have a few legal recourses available to you. For example, you can get a legal separation now, which serves to detangle your lives, finances, and legal obligations to one another while you wait to meet the above requirements. Some couples prefer this option. For example, if one partner has benefits through employment, they may seek a legal separation to continue extending those benefits to their former spouse for a limited time.
If you have concerns about meeting those requirements, contact a qualified family law attorney. They can help you figure out if you are able to obtain a divorce, or if you need to wait. Family law attorneys can also help you find viable alternatives to divorce, facilitating legal separations in most of those cases.
Division of Assets
Generally speaking, there are three types of assets involved in a divorce:
- Community property
- Quasi-community property
- Separate property
Community property is anything that you and your spouse acquired throughout your marriage or domestic partnership that is not a gift or inheritance. This includes assets purchased as well as earnings from income or dividends. Community property also includes any debt that was incurred throughout the relationship.
Under California law, each spouse owns half of all community property. Each spouse is also responsible for half of all shared debt. In most cases, these assets are divided equally. There are some couples that agree to an unequal division of assets to compensate for items with sentimental value.
Assets purchased while you and your spouse were married and living out of state, that would have been considered community property had you resided in California, is called quasi-community property. These assets are treated exactly the same way as community property in divorces and separations.
Separate property is any asset owned by a spouse prior to marriage or the registration of the domestic partnership. Certain assets, such as inheritances and gifts received during the course of marriage, are also considered separate property. These assets belong to the spouse who brought them into the marriage. The other spouse has no right to those assets, and upon dissolution of the relationship, they remain the property of the original owner.
Dealing with separate property seems simple but it can become incredibly complicated, especially for high earning couples or those who have been together for a long time. It is best to consult with a lawyer when dealing with this type of asset, even if both parties agree about its treatment, just to be sure everyone’s rights are being protected.
Property Division Issues for Some Same Sex Couples
For the most part, the law treats same sex divorces the same way as opposite sex ones. There are some cases where special considerations need to be made. For example, because same sex marriage is only recently legal, courts are seeing a growing number of cases where a party has only been married for a short time, but has been living together in a committed relationship for decades. In those cases, normal property division laws are not fair. The courts must spend time determining which asset belongs to which part, and must step in to resolve any disputes.
While you should always retain a family law lawyer to help with property issues, it is especially important to do so if you and your former spouse were living together for many years before registering your partnership or getting married. This issue needs to be raised with the courts in a specific way, which is a job best left to legal counsel.
Mediation vs. Court Application
There are a few ways same sex and opposite sex couples can deal with the issues they face upon the breakdown of the relationship. Two of the most popular are mediation and court application. The best choice for you depends on the circumstances surrounding the divorce. For example, mediation is not ideal in situations involving domestic violence or an imbalance of power.
If you are still getting along well with your former spouse, you may want to consider mediation. It is mandatory in all cases involving child custody, and voluntary for other parties. Mediation often results in a more personalized agreement, taking into consideration your unique situation and any agreements made between you and your former spouse. There are a few notable advantages to this approach:
- Reduces conflict between spouses
- Spouses typically comply more with agreements they helped create
- Often less costly than lengthy legal court proceedings
There are also a few downsides to making mediation the only way you deal with your divorce:
- You may not have full knowledge of your spouse’s financial situation, since there is no discovery in mediation
- Mediation can become costly if you and your spouse disagree on issues, or your mediator may resign altogether
- It can be difficult to re-negotiate the terms of a mediation agreement if your situation changes
Filing for divorce through the courts involves the completion of a lot of paperwork. In some cases, filling out these forms wrong can result in delays to your divorce or even legal trouble for you. It is best to hire an attorney to help you with these documents. They fill out these forms for a living, and know exactly how to complete them in a way that the courts accept.
Once you file your petition with the court, there is a six-month waiting period before your divorce can be granted. This does not mean that after six months you are automatically divorced. The courts must be satisfied that all financial and custodial arrangements have been made and are fair to all parties, and to any children involved. This can take some couples much longer than six months to resolve. Hiring an attorney skilled in same sex divorce can help reduce the length of time spent negotiating terms. This gives you access to your divorce faster.
Thanks to California’s no-fault laws and fair access to divorce, there is no need to remain in a marriage that is not working. As long as you meet the legal requirements, you can obtain a divorce in a relatively short timeframe. This is the best way to move on from an unhappy or dysfunctional situation.
Assistance with Same Sex Divorce
Same sex couples considering divorce in California should always contact legal counsel for advice. You need to be sure that your rights are protected and that any agreements made between you and your former spouse are in keeping with enforceable laws. In addition, some members of the legal system may harbor certain biases against same-sex couples. Having highly qualified and aggressive legal counsel in your corner is the best way to ensure these biases do not interfere with any rulings about your case.
If you need to learn more about same sex divorce in California, contact San Diego Divorce Attorney. With years of experience in the legal field representing couples of all orientations, we have the perfect team to have in your corner. San Diego Divorce Attorney understands the unique challenges faced by same sex couples, and work hard to ensure your rights are respected by all involved with your case. We also know when to be tough and aggressive, and when to respect private agreements made between amicable parties. Contact our divorce lawyer by calling 858-529-5150 to learn more about our personalized approach to divorce services today.