How Does the Court Handle Same-Sex Marriage Divorce?

How Does the Court Handle Same-Sex Marriage Divorce?

Same-sex marriage divorce is processed similarly to opposite-sex divorce.

According to the California Courts, divorce is permitted for residents who have lived in the state for at least six months and in their current county for three months.

For same-sex couples married in California but living in states not recognizing such divorces, California offers unique provisions.

These couples can file for divorce in the county where they are married, although decisions on property, support, or children might be limited​​.

Legal Recognition of Same-Sex Marriage

The recognition of same-sex marriage in California commenced on June 16, 2008, following the Supreme Court of California’s ruling in the In re Marriage Cases, which found that barring same-sex couples from marriage violated the state’s constitution.

Proposition 8, a state constitutional amendment banning same-sex marriages, led to a temporary delay of this decision, as reported by the California Courts, from November 4, 2008, to June 27, 2013.

Same-sex marriages in California resumed on June 28, 2013.

These legal milestones ensure that same-sex marriages, and divorces, are treated with the same considerations as opposite-sex marriages​​.

Marital Dissolution vs. Divorce

In California, “marital dissolution” and “divorce” are essentially the same.

Both terms refer to the legal ending of a marriage, but historically, “divorce” implied fault.

Today, California allows for no-fault divorces, with the term “dissolution” reflecting the equitable nature of modern divorce proceedings.

There’s no practical distinction between dissolution and divorce.

Legal separation, on the other hand, involves staying married while dividing property and making orders about financial support and child care, without the 6-month waiting period required for a divorce.

The California Courts Self Help Guide provides more information on divorce and dissolution.

Filing for Same-Sex Marriage Divorce – Step by Step Process

When considering divorce, consulting an attorney is vital for guidance through legal procedures. Essential documents like the Petition and Summons initiate the process.

Serving divorce papers properly is crucial, and requiring an adult is not part of the case for delivery.

Consulting with an Attorney

While it’s possible to proceed with divorce without a lawyer, particularly with help from court self-help centers, the California Courts strongly suggest hiring an attorney. They will give great guidance, especially in cases involving property or debt.

Lawyers have the expertise in handling legal documents, ensuring due process, and offering advice on matters such as child custody, spousal support, and asset division.

This support will protect one’s interests and rights throughout the process​​​​.

Our divorce attorneys in San Diego handle all aspects of divorce proceedings.

Gathering Necessary Documentation

To initiate a divorce, the essential documents include a Petition (Marriage/Domestic Partnership) and a Summons (Family Law).

The Petition gathers basic information about the marriage and requests for court orders regarding aspects like spousal support and property division.

The Summons notifies the spouse of the court case and their response timeframe.

The U.S. Department of Justice states that when children are involved, a Declaration under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) must be completed. This declaration includes important details about the children’s birth, where they live, and any court cases related to them.

Accurate financial records and marriage certificates will ensure a fair division of assets and responsibilities.

You can find more details about starting a divorce in the California Courts Self Help Guide.

Filing the Petition

To formally file a divorce petition, complete the required forms (Petition and Summons) and file them at the appropriate courthouse.

Locate the courthouse that accepts divorce filings on the Find My Court page.

At the courthouse, submit the original forms and two copies to the clerk, who will assign a case number and stamp the forms. The court keeps the original, and the copies are returned to you and your spouse.

A filing fee of $435-$450 is required, with a fee waiver option available for those who cannot afford it and meet certain criteria​​​​.

For details on how to file a divorce petition, check the California Courts Self Help Guide.

Serving Divorce Papers

Serving divorce papers involves formally notifying the other spouse of the court case.

The process, known as personal service, requires an adult, other than the petitioner, to hand over copies of the filed divorce papers to the spouse. This server must be over 18 and not involved in the case.

Options for servers include a known individual, a county sheriff, or a professional process server. The server must complete and file a Proof of Service form with the court, detailing how, when, and where the papers were served.

In certain situations, like if the spouse is in another country, other service methods like mailing with acknowledgment or service by publication may be used.

Find detailed information about delivering divorce papers in the California Courts Self Help Guide.

Do you need a San Diego divorce attorney? At Happ Law Group, we will always protect your interests.

Read About: What Are the Standard Family Law Restraining Orders?

Property and Asset Division

In same-sex marriage divorce, property, assets, and debts are divided into two main categories: community and separate property.

Community property includes assets and debts acquired during the marriage, which are divided equally. This includes earnings, purchases made with these earnings, and debts incurred while married.

Separate property, owned individually before marriage or after separation, as well as any gifts or inheritance, remains with the individual owner.

Commingling can occur, blending separate and community property, particularly in cases involving huge purchases or retirement plans.

To learn about community and separate property, see the California Courts Self Help Guide.

Child Custody and Support in Same-Sex Divorce

Child custody and support in same-sex divorces involve considerations similar to those in heterosexual divorces, with a focus on the child’s best interests. For more FAQs on same-sex divorces, visit the American Bar Association.

California has granted domestic partnerships the same rights and responsibilities as marriages, including the presumption that both partners are parents of a child born into the partnership and the right to request partner support (alimony) upon dissolution​​.

Parental rights and responsibilities in same-sex divorces are determined based on factors like biological parenthood, adoption, and the role played in the child’s life.

For instance, if a non-biological parent has acted in a parent-like role, they may pursue custodial rights.

Additionally, if a non-biological parent adopted the child or was part of a decision to start a family, they might be responsible for child support​​.

At Happ Law Group, our Child Custody Attorneys and Lawyers in San Diego represent individuals in all child custody matters.

Spousal Support in Same-Sex Divorce

The California Courts state that spousal support in same-sex divorces is treated similarly to heterosexual divorces. The goal is to help the lower-earning spouse maintain their standard of living post-divorce.

Factors influencing support awards include marriage length, partners’ age and health, incomes, earning capacities, standard of living during marriage, each partner’s property and debts, contributions to each other’s education or careers, and need versus ability to pay.

For marriages under ten years, support typically lasts half the marriage length. For marriages over ten years, duration varies based on the spouse’s need and the other’s ability to pay.

Whether you want to maximize the amount of support you receive or minimize your support obligations, we are here to assist you.

You Might Like: How Is Property Valued In a Divorce Case?

Legal Rights and Protections

California law is against discrimination based on sexual orientation or gender identity in various aspects of public life, including employment, housing, and more. These laws ensure a discrimination-free process during divorce proceedings for individuals in same-sex marriages.

Litigation and Court Proceedings

The process begins with filing a court case, and California follows a “no-fault” divorce principle, meaning no blame is assigned for the divorce.

The California Courts declare that couples can divorce to end a marriage or a domestic partnership.

The court may not be able to make decisions about property, support, or children if one partner lives in a state that doesn’t recognize same-sex divorce.

Litigation involves making agreements about property division, financial matters, and child support. If agreements can’t be reached, the court decides.

Bottom Line

We understand the legal nuances and emotional aspects of such situations, and we’re dedicated to helping families find effective solutions.

Contact us today for personalized assistance tailored to your unique circumstances.

FAQs on Same-Sex Marriage Divorce

What is the difference between marital dissolution and divorce in same-sex marriages?

In California, “marital dissolution” and “divorce” are essentially the same, both referring to the legal ending of a marriage or domestic partnership.

What is the current divorce rate for same-sex marriages?

DivorceBob reports that the current divorce rate for same-sex marriages in California ranges from 5% to 6%. This rate is especially higher for lesbian couples with children, reaching 12.3% within the first five years of marriage. Overall same-sex divorce rates are on a decline as of 2023.

Is the divorce rate higher in homosexual marriages compared to heterosexual marriages?

The divorce rate for same-sex marriages is slightly lower than that of heterosexual marriages. A study by the UCLA School of Law’s Williams Institute in 2014 found that same-sex divorce rates hovered between 1.1% and 1.6%, which is slightly lower than the rates for heterosexual couples.

What is the process for filing a same-sex marriage divorce?

To file for a same-sex marriage divorce, one must start a court case. The state follows a “no-fault” divorce system, and the process is the same for both same-sex and opposite-sex marriages.

How are child custody and support determined in same-sex divorces?

Child custody and support in same-sex divorces are determined based on the best interests of the child, similar to opposite-sex divorces. Factors like parenting capabilities, the child’s health and safety, and emotional ties are considered.

DISCLAIMER: This information is made available by Happ Law Group P.C. for educational purposes only as well as to provide general information and a general understanding of California law, not to provide specific legal advice. If you are in need of advice about your specific situation, you should consult with a California family law attorney.