More states than ever before are now recognizing the validity of same-sex marriages and allowing them within their borders. This means that, in those jurisdictions, same-sex couples finally have the right to marry and to have their marriage accepted as a legal union. They can also enjoy unique legal aspects of marriage, including the right to obtain certain benefits (health insurance and survivor benefits, among others), the right to inherit property if a spouse dies without a will and the ability to take advantage of certain tax breaks and credits available only to married couples.
Logically, once same-sex couples are allowed to marry, it will be equally possible for them to divorce in a state’s family court the same way that heterosexual couples can. Unfortunately, that isn’t necessarily the case.
The legal conundrum
Some couples have traveled to a state where same-sex marriage is legal to get married and then returned home to a resident state that doesn’t recognize gay or lesbian marriage. In that case, since the state’s courts don’t recognize that the couple is legally married, they likewise won’t recognize an attempt to end a union. This can mean that jointly owned properties or otherwise community property (like retirement accounts of one spouse) can only be divided according to civil court rules, forcing same-sex couples to refinance properties or miss out on important financial protections. It also denies same-sex couples the ability to file for spousal support payments.
Thankfully, California is more progressive than many other states when it comes to same-sex marriage (notwithstanding the state’s implementation of the now-overturned “Prop 8” that temporarily banned gay marriage in the state’s borders) and same-sex divorce. California, of course, allows couples living in the state to file for divorce if they have met certain residency requirements. Perhaps more importantly for same-sex couples, it also allows couples who were married in the state but reside elsewhere to seek divorces as well. The state will waive residency requirements for a same-sex couple married there provided at least one spouse is currently living in a state that doesn’t afford lesbian or gay couples the opportunity to divorce (see California Family Code Section 2320(b)(1)).
However, just because the state will allow same-sex couples to seek a dissolution of their marriages doesn’t mean that the process will be an easy one. Family court judges handling heterosexual divorces have more than 100 years’ worth of case law at their disposal when making important decisions concerning child custody, child support, visitation, property division and spousal support, but since very few same-sex divorces have been filed, there is little precedent for judges to consult. This can lead to markedly different results in different jurisdictions around the state, something many would argue is inequitable.
Though the law will evolve for same-sex marriages and divorces, there is currently a disparity in the way heterosexual divorces are decided and the way same-sex marriages are. In the meantime, it is important to carefully complete all divorce-related paperwork and to present the best possible arguments to the judge deciding your case. Do you have additional questions about the emerging legal area of California same-sex marriage and divorce? Are you thinking about ending a same-sex union entered into in California? For more information about your legal rights and options, seek the advice of a skilled family law attorney in your area.