California same-sex couples gain rights, face challenges

California’s gay and lesbian couples can now legally marry but they still face challenges when it comes to divorce and family-related disputes.

When the United States Supreme Court overturned both the federal “Defense of Marriage Act” and California’s “Proposition 8,” same-sex couples around the state – and the nation – cheered. With the overturning of “Prop 8,” gay and lesbian couples in California once again have the right to legally marry, and are not limited to forming domestic partnerships or civil unions. Now that DOMA has been ruled unconstitutional, federal laws and benefits should now flow to same-sex married couples as they do to heterosexual married couples.

Lesbian, gay, bisexual and transgender advocates around the country hailed the Supreme Court’s decisions, recognizing the huge step that had been taken toward marriage equality.

Challenges remain

Unfortunately, the news is not all good. In spite of the fact that same-sex couples can now legally marry, that does not always mean they will be treated exactly the same as more “traditional”/heterosexual couples will.

There are still unique challenges facing California’s same-sex couples in the arenas of taxes, estate planning, health insurance and government benefits. In addition, gay and lesbian couples may have difficulty dealing with the state’s family court system when faced with family-related legal disputes like divorce, child custody, child support and alimony (also known as “spousal support” or “spousal maintenance”).

Special circumstances for same-sex couples

The laws may now support marriage equality for same-sex couples and different-sex couples alike, the fact remains that LGBTQIA+ couples can face disparate treatment in the family law arena.

While the 2013 overturn of “Prop 8” once again allowed same-sex couples in California to marry after a five-year hiatus, there still isn’t much precedent to guide judges when it comes to ending same-sex relationships. Since family court judges are essentially interpreting existing laws in a gender-neutral “filter,” there is the opportunity for disparate results between judges, even those in the same jurisdiction.

In addition, with gay marriage being a relatively new legal construct in many areas, there simply isn’t precedent to guide judges when one ends. This could mean that a same-sex divorce will take longer and be more complex than a heterosexual one, just because the court is essentially forging a new path toward resolution.

Furthermore, if same-sex couples haven’t taken the proper legal steps to secure parentage for both spouses, there could be child custody disputes if the relationship ends. If, for example, a same-sex couple has a child via artificial insemination or a surrogate while they were unmarried, only the biological parent has imbued parental rights. If the other spouse wants to accept the same responsibilities and receive the same rights, he or she must take the extra step to adopt the child.

Property division can also be tricky for same-sex couples in California. When a judge is dividing property for a divorcing couple (or a couple seeking to end a registered domestic partnership), only the assets and debts that the parties accrued during the marriage/partnership. This means that, similar to the situation facing long-time heterosexual cohabitants who only recently took the proverbial “plunge” into marriage, that any assets or debts prior to the date of the marriage likely won’t be considered, no matter how long the couple was together before they wed.

Do you need guidance?

Are you dealing with the complex issues associated with ending a same-sex relationship? Would you like guidance about what steps you should take to protect your rights in any LGBT family law issue? If so, consider the representation of a family law attorney familiar with the ins and outs of the California family court system concerning same-sex and relationships.

Keywords: same-sex, gay marriage, same-sex marriage, same-sex divorce, lesbian marriage, gay divorce, lesbian divorce, custody, child support, spousal support