Dissolving a Same Sex Marriage or Domestic Partnership
For same-sex couples, the process of getting divorced in California generally follows the same procedure as it does for opposite-sex couples. However, there are some unique aspects to same-sex divorce in California, including determining child custody and some additional procedures that must be followed if the parties are also registered domestic partners.
Generally, to file for divorce, either you or your spouse has to have lived in California for the past 6 months and in your current California county for the past 3 months. If your spouse does not live in California, while the Court may be able to dissolve marital status, it may be possible that the Court lacks the jurisdiction to order your spouse to pay support or divide any assets. There are special residency rules that permit same sex partners to divorce in California if you married in California, but now live somewhere that doesn't allow divorces for same-sex couples, you can file for divorce in the county you married. The court can end your marriage but may not be able to make decisions about property, support, or children. Couples who have registered their partnership in California have consented to California maintaining jurisdiction to terminate the partnership regardless of where the partners may now reside. This requirement, often referred to as a residency requirement, affects only those partnerships registered in California, but does not apply to same-sex marriages performed in California.
If you are considering dissolving your same sex marriage or domestic partnership, it is important to seek the advice and assistance of a licensed family law attorney who has experience with these types of issues and understands the unique complexities of same sex couples. Shawn Murphy has assisted numerous same sex couples navigate custody, divorce, and support issues, and as a certified family law specialist, she specializes exclusively in family law and domestic relations.
If we were married in California before Prop 8 went into effect is my marriage still valid?
All same sex marriages that were solemnized in California between the dates of June 16, 2008, and November 5, 2008, are considered valid and recognized by California. Despite the imposition of Proposition 8, the California Supreme Court held in Strauss v. Horton (2009) that Proposition 8 didn't invalidate the marriages of same-sex couples who married in California before Prop 8 passed. Accordingly, if you were married in California during that period, your marriage is completely valid and entitled to full recognition.
Are couples who are registered domestic partners in California now automatically considered married?
No. Couples who are registered domestic partners are free to decide whether or not they wish to marry. Those who do wish to marry must go through the formal legal steps required for any couple in California to legally marry.
If were registered domestic partners, and then got married, what do we need to do to become legally divorced?
California domestic partnership statutes permit individuals to be both married and in a registered domestic partnership at the same time, so long as it is to the same person. You will need to dissolve your domestic partnership with the Secretary of State as well as proceed through the dissolution process to fully terminate your legal relationship with your spouse and domestic partner.
Can I marry a different partner if I have a registered domestic partnership with my former partner?
No. Before you marry your current different partner, you need to dissolve the previous domestic partnership first. If you are in a civil union or registered domestic partnership with another person, any marriage to a second person will be invalid.
What are my rights as a non-biological parent to my child?
In California, if you are married to or in a domestic partnership with the person who gives birth when your child is born, you are presumptively the parent of that child in California. However, because not all states fully acknowledge the rights of non-biological parents, you may want to consider confirming your legal rights through an adoption or other court judgment.
As is the case for other married couples, if the child was born during a prior relationship, the spouse of a birth parent can obtain a step-parent adoption if the other parent agrees, or if their rights are terminated. California also allows children to have more than two legally-recognized parents in some situations. Often referred to as the “3rd parent law,” Family Code § 7612 permits the recognition of more than two parents in cases where recognizing only two parents would be detrimental to the child. In drafting this new law, the California legislature has said the following: “Most children have two parents, but in rare cases, children have more than two people who are that child's parent in every way. Separating a child from a parent has a devastating psychological and emotional impact on the child, and courts must have the power to protect children from this harm.” All three parents can be included in child custody and support.