In June 2013, same-sex marriage was legalized in California when the state Supreme Court ruled that prohibiting same-sex marriages was unconstitutional. It was a historic decision that was upheld by the U.S. Supreme Court, giving validation to same-sex marriage throughout the nation. Since then, same-sex couples all over have had the same rights as opposite-sex couples to experience the joys of marriage. Many of them have, and many will continue to. However, many people still ask: Can same-sex couples get divorced in California?
Sadly, with the joys of marriage sometimes comes the sorrows of divorce. Relationships don’t always work out the way one hopes. There can be a myriad of reasons why or just one simple reason. Regardless, divorce can creep up on anyone, and it doesn’t care about sexual orientation. Divorce is hard enough on its own without the complexities of legal aspects adding to the difficulty. It can be useful to look at some of the common concerns surrounding same-sex divorces.
Filing for Divorce as a Same-Sex Couple
California is a no-fault divorce state. Before no-fault divorce was signed into law, it had to be proven that one spouse was responsible for the end of a marriage. This often led to long and fierce legal battles, where secrets would be aired out about both parties, and children would be dragged into it. California was the first state in the nation to become a no-fault state in 1969.
When filing for a divorce, it’s not necessary to state or prove why the divorce is happening. Anything that occurred during the marriage can stay between the parties involved. However, it’s important to note that certain issues, like domestic violence, will still influence decisions involving child custody and spousal support.
The first step to filing for divorce in any state is to make sure that you can file in that state. For anyone to get a divorce in California, one spouse must have been living in California for the last 6 months and in their current county for the last 3 months. For same-sex couples and domestic partnerships, there is an exception to this rule.
Same-sex marriage isn’t recognized everywhere, therefore, same-sex divorce isn’t either. Couples who were married in California but are not residents can still get a divorce there if the place where they currently live does not allow same-sex couples to divorce. The petitioning party or parties can file for divorce in the county they were married.
The one condition is that the court may not be inclined to make decisions regarding child custody, spousal support, or asset division. This rule is similar to the one governing California-registered domestic partnerships.
Child Custody Rules for Same-Sex Divorces
In same-sex marriages where only one parent is the biological parent, the thought of a possible custody battle can be scary. The non-biological parent may think that they have no right to retain custody of the child. Contrary to what some may believe, California recognizes a non-biological parent’s right to pursue custody of a child if they have taken on the position of a parent. In any case, it is a good idea for any parent to legally establish parental rights so they can be seen as the child’s parent by law.
It’s also a good idea to try to agree on a parenting plan together. In divorces where neither parent can agree on a plan, the judge decides for them. This is true for opposite-sex couples and same-sex couples. Whether it’s shared custody, sole custody, or visitation, the judge will make a decision that’s in the interest of the child.
Division of Property
If the divorcing couple resides in California, the principles for the division of property for same-sex divorces is the same as that of opposite-sex divorces. In both cases, a judge must approve how property will be divided. Property is divided into two sections: community property and separate property.
Community property includes all property and debts that the couple owns or owes throughout the marriage. Separate property encompasses all property and debts that the individuals owned or owed before the marriage or after separation. Generally, community property is divided. If the divorcing parties can’t decide how to divide community property, the judge will decide for them.
Q: Can Both Parties File for Divorce in California?
A: There is no law or rule against both parties filing separately for divorce in California, so it is entirely possible. In fact, if both parties agree on all terms of the divorce, it can decrease the chance of prolonged discussions and allow proceedings to move more quickly. This can be done by filing a joint petition for divorce.
Q: Can You Get Divorced Without the Other Person in California?
A: California is a no-fault divorce state, so the spouse petitioning for a divorce doesn’t need a reason to file or the permission of the other spouse. In California, a divorce is possible even when one person does not want a divorce. There is no need to prove that one party is to blame for whatever caused the marriage to end. A divorce can proceed without both spouses agreeing.
Q: Can I Date While Separated Before My Divorce Is Finalized in California?
A: It is not illegal to start dating before a divorce is finalized in California. California, being a no-fault state, is not necessarily concerned with why a couple may be getting divorced. It is important, however, to consider how dating someone during a divorce proceeding can make the divorce less amicable.
Q: What Is the Divorce Rate in California?
A: It’s difficult to say with certainty what the exact divorce rate in California is. In the past, the state had a divorce rate that was higher than the national average of 50%. Currently, it is reported to be hovering at around 9%. This can be attributed to many people either waiting longer to get married or not getting married at all.
Contact the Skilled Divorce Attorneys at the Law Offices of Schwartz & Godbey
Whether you’re a same-sex or opposite-sex couple going through the process of a divorce, the procedures and legal matters can be complex, and certain concerns can arise. Working through the details with a knowledgeable attorney can help take some of the stress away and make a big difference in the final result. If you’re unsure how to pursue a same-sex divorce in California, the Law Offices of Schwartz & Godbey can answer your questions and provide guidance.