In California, same-sex divorces are legally treated the same as opposite-sex divorces. However, depending on the circumstances of your relationship, there may be some additional considerations applying to your divorce. To better understand what will be involved in a same-sex divorce, speak with a California divorce lawyer who can review the details of your case and walk you through the divorce process.
Steps for Getting a Divorce in California
Any couple wishing to end a marriage must go through the following four steps:
- File for divorce. Since California is a no-fault divorce state, either couple can file a petition for divorce without providing any evidence for cause. Once the petition has been filed with the court, the legal proceedings have officially begun.
- Serve divorce papers. The spouse that is filing for divorce is legally obligated to serve the other spouse divorce papers indicating their intent to divorce. The mandatory waiting period does not begin until the other party has received these papers.
- Wait for six months. California requires a six-month “cooling off” period before the divorce can be finalized. The intent of this waiting period is to allow couples time to reconcile differences, cancel the request for divorce, or prepare for settlement hearings. This waiting period is mandatory for all couples, even if they both agree on settlement terms.
- Finalize the divorce. Once a divorce has been filed and served and the waiting period has fully elapsed, the couple may then pursue divorce finalization. Simplified divorces may not require a hearing or court date, but more complex divorces, such as those with children or high-valued assets, will.
While the steps for obtaining a divorce are relatively straightforward, challenges both during and after divorce can make for a complex and emotional experience. Hiring a qualified divorce attorney can ease a lot of these challenges, especially for same-sex couples.
Same-Sex Divorce Challenges
California divorce proceedings generally include property division, child support, spousal support, and child custody. This always involves considering many factors in the relationship. For same-sex couples, some of those factors may present legal challenges. For example, same-sex couples may find it legally difficult to establish the following factors:
- Marriage duration. Same-sex marriage was not legalized until 2013 in California and 2015 throughout the rest of the country. This means that a couple may have only been legally married for 7 or 10 years, even if they’ve been together for much longer. Prior to same-sex marriage legalization, couples entered into alternative civil unions, such as domestic partnerships. Protections for these types of relationships differ from marriages.
- Unlike in opposite-sex marriages, there are no legal presumptions for children had in same-sex marriages that would automatically establish parentage for both parents. Instead, parentage must be established separately, such as through adoption, in order for both spouses to retain parental rights in the event of a divorce.
How the couple is able to legally establish or determine marriage duration and parentage will impact the following legal matters:
- Property division. Since California considers any asset or debt acquired during the marriage community property, the legal start of the marriage will directly impact how much of your property will be subject to division.
- Spousal support. Usually, the duration of spousal support required is directly related to the length of the marriage – typically half the duration. When the marriage legally began, rather than how long the relationship was, will affect this potential settlement.
- Child custody. Since custody is only awarded to legal parents of children, whether parentage was properly established will directly impact each spouse’s granted rights to the child.
- Child support. The non-custodial parent is usually required to pay child support. However, if parentage was never established, the other spouse may not be legally obligated to pay any amount.
FAQs About Same-Sex Divorce in California
How Long Does It Take to Get a Divorce in California If Both Parties Agree?
In California, it takes at least six months to get a divorce, even if both parties agree. There are four steps involved in the divorce process. First, one of the parties must file for a divorce. Once they do, they will then need to serve the other party divorce papers. After the other party has been served, there is a mandatory six-month waiting period. After this time, the couple may then finalize the divorce.
What Is the 5-Year Rule for Divorce in California?
In California, there is a five-year rule for divorce that allows a couple to qualify for a summary dissolution. A summary dissolution is a simplified divorce process and may be done if the couple has been married for less than five years, has no children together, does not own land, and has assets and debts that fall under a particular threshold. This option is the quickest way to obtain a divorce, often finalizing immediately after the waiting period.
What Is a Wife Entitled to in a Divorce in California?
When divorcing in California, your wife or spouse is entitled to 50% of any and all property that was acquired during the marriage. Property need not be acquired by both members to qualify, as any property acquired by either spouse constitutes community property, including real estate, bank accounts, debts, and business ventures. In many cases, your wife or spouse may also be entitled to additional spousal support payments. Specific amounts will vary in each case.
What Is the 10-Year Rule for Marriage in California?
California considers any marriage lasting 10 years or more a “marriage of long duration.” Marriages lasting longer than 10 years generally qualify for extended benefit periods for spouses. Spousal support usually limited to half the length of the marriage, can be ordered for long-term or permanent payments. Additionally, spouses may be eligible for social security and military pension benefits based on their spouses’ service or work history. Finally, the court retains jurisdiction over the divorce of long-duration marriages.
If you are in a same-sex marriage and are seeking a divorce, or if you are being served divorce papers from your spouse, speak with a member of our team today by contacting our office. At Hayes Family Law, we customize our representation strategies to meet the specific needs of your unique case. Our attorneys are both experienced and skilled in carrying out divorce proceedings for all couples, including same-sex couples. Reach out today for a consultation.