Gay couple having an argument

Issues in Same-Sex Divorces

The Law Offices of Steven E. Springer May 1, 2023

When it comes to divorce, there are always challenges to navigate. But for same-sex couples, there are unique challenges that come with dissolving a marriage. It is best to prepare for those challenges well in advance so that they do not catch you off guard when it is too late.   

If you want to divorce your same-sex partner in California but are not prepared for the unique challenges you might face, seek the legal guidance of a family law attorney. Our attorneys at The Law Offices of Steven E. Springer help both same-sex and opposite-sex couples get a divorce and provide them with high-quality representation both in and out of court. 

From our offices in Morgan Hill and San Jose, California, we are proud to serve Pleasanton, Hayworth, Fremont, Santa Clara County, Alameda County, and the rest of California. Set up a consultation with us today. 

Same-Sex Marriage in California

Same-sex marriage is permitted in California. In 2015, the Supreme Court held that the Constitution guarantees same-sex couples the right to marry. Since then, there has been no legal distinction between marriage for same-sex couples and marriage for opposite-sex couples. In fact, several counties in California issued marriage licenses to same-sex couples since 2008.  

Same-sex couples have the same rights and responsibilities as opposite-sex couples. After the Supreme Court’s milestone decision in Obergefell v. Hodges, same-sex couples were granted the same legal protections and benefits as opposite-sex couples. This means that if a same-sex couple divorces, they will be subject to the same legal process and requirements as any other divorcing couple. 

How Do I Divorce My Same-Sex Partner in California?

The process of divorcing a same-sex partner in California is the same as divorcing an opposite-sex partner. To obtain a divorce in California, either you or your spouse must have resided in California for at least six months and in the county where the petition is filed for at least three months. 

The legal grounds for divorce in California are ‘irreconcilable differences,’ meaning that you and your partner are no longer able to get along, and there is no hope of reconciliation. 

Common Issues in Same-Sex Divorce 

Let’s explore the unique challenges in same-sex divorces and what you should consider before starting the divorce process:  

1. The Couple Was Together Before Same-Sex Marriage Became Legal

When same-sex couples could not legally marry, many chose to have a commitment ceremony, with some couples even creating legal contracts to outline property division and financial obligations. However, these agreements may not be legally binding in court. Therefore, the court will look at the date of legal marriage rather than the date of the commitment ceremony or when the couple began living together. 

2. Assets Were Acquired Before the Legal Marriage Date

Another issue that arises is the division of assets acquired before the marriage date. This can be especially complicated if one partner brought significant assets into the relationship and did not want to share them. California is a community property state, which means that all assets acquired during the marriage must be split equally unless there is a prenup or separate agreement in place.  

3. The Non-Biological Parent Did Not Adopt Their Spouse’s Biological Child

Another unique challenge in same-sex divorces is determining child custody and support. In same-sex divorces, things can be complicated if the non-biological parent did not legally adopt their spouse’s biological child, which means they may not have any legal rights to that child. This can be emotionally devastating, though the court will always do what is in the child’s best interest. 

4. Pre-Marriage Time Together May Not Be Factored In When Calculating Spousal Support

As mentioned earlier, pre-marriage time together may not be factored in when calculating spousal support. This can be a particular challenge in long-term relationships, where one partner has financially supported the other for years. Before same-sex marriage was legal, some couples created legal contracts and agreements to outline financial support should they separate. However, these agreements are not always upheld in court.  

5. Tax Issues 

Same-sex couples who were legally married before the Supreme Court’s landmark decision in Obergefell v. Hodges are entitled to the same federal tax benefits as opposite-sex couples. However, if you were married in one state and reside in another state that does not recognize same-sex marriage, you may face additional tax complications.  

Understand Your Rights and Options

If you are considering divorcing your same-sex partner, contact a skilled family law attorney to understand your rights and options. Our attorneys at The Law Offices of Steven E. Springer can help you navigate the unique challenges same-sex couples face when getting a divorce. Contact our firm today to set up a free consultation.