Since 2015, same-sex couples in California have had the legal right to marry. Same-sex couples who get married will have the same legal rights as opposite-sex couples in California. Therefore, the process of getting a divorce is the same for all married couples in California. Here are the steps involved:
- File a petition with the court to begin the divorce proceedings. California is a no-fault divorce state, which allows you file for divorce without proving cause.
- Serve your spouse with divorce papers.
- Wait six months (California’s mandatory waiting period), then finalize the divorce.
While the process is the same, there are certain issues that arise in same-sex divorces that may not arise in opposite-sex divorces. Some of these issues impact child custody and property division
Child custody
For opposite-sex couples, there is a legal presumption that the spouses are the parents of any child born during the marriage.
However, this presumption does not exist for same-sex couples. If only one parent is biologically related to the couple’s child, and the other parent did not legally adopt the child or otherwise establish their parentage, determining custody can be challenging.
In such cases, it may be more difficult for the non-biological parent to retain their legal rights to the child. However, courts are generally focused on doing what is in the best interest of the child. If the child has two parents who are able and willing to care for the child, the court is likely to consider shared parenting.
Property division
Generally, a spouse will be entitled to 50 percent of the marital property in a community property state like California. However, separate property, or property each spouse owned individually prior to the marriage, will generally not be eligible for division during the divorce.
This could be an issue for same-sex couples that were together for several years before same-sex marriage was legalized. The property they acquired during their relationship prior to marriage may be considered separate property, even if they purchased it together or with joint funds.
Same-sex couples in California have the same legal rights as opposite-sex couples when it comes to marriage and divorce. However, they may face certain challenges during the divorce process. Adequately preparing for what is coming is essential to making the process go more smoothly.