Same Sex Divorce Laws in California;- LGBTQ+ rights discussions have gained traction in recent years, questioning traditional conventions and promoting greater acceptance. Even while significant progress has been made, there are still many legal and social obstacles to overcome, particularly when it comes to divorce involving the same sexual partner.
Prior to the Obergefell v. Hodges decision by the U.S. Supreme Court in 2015, which made same-sex marriage lawful across the country, many same-sex spouses struggled to obtain a divorce. Prior to the judgement, married same-sex couples were typically unable to obtain a divorce in states that did not recognise marriage equality.
Although it was lawful for them to divorce in the state where the wedding was performed, most states want a specific amount of time of residency before granting a divorce.
What is Same Sex Divorce?
A divorce is the formal dissolution of a marriage.
Divorce is still referred to as divorce in same-sex relationships. However, dissolution is the term used to describe the end of a civil relationship legally.
Divorce involving people of the same gender can be extremely challenging. Standard divorce proceedings may be quite easy to follow if the divorce is pretty amicable and the reasons for it are agreed upon. Although there are many different grounds for divorce, infidelity, unreasonable behaviour, and desertion are the most typical ones. But when a divorce is unfavourable and contentious, issues may surface and the court will need to get involved.
Same-Sex Divorce in California
The same family law and legal process that apply to any other divorce also govern same-sex divorce in California. A same-sex marriage or domestic partnership in California can be ended through divorce.
Defense of Marriage Act:-
No state was obligated to recognise same-sex unions from other states under the Defence of Marriage Act’s (DOMA) now-repealed Section 2 of the law. Any state that prohibited same-sex unions had the option of refusing to recognise same-sex unions that occurred in other states as legal unions. Consequently, even if a same-sex couple met the residency criterion for divorce, their divorce petition might still be rejected if they lived in a state that did not recognise their marriage.
States that rejected same-sex unions frequently also refused to enforce same-sex divorce verdicts against its citizens. If, for instance, an ex-spouse moved to a state that didn’t recognise same-sex marriage, court orders (including support orders) were frequently invalid across state borders. However, the Obergefell ruling, which upholds marriage equality at the federal level, also calls for states to recognise legally binding same-sex unions contracted outside of their own borders.
The causes of same-sex divorce in California
In California, there is no requirement that one spouse establish the other’s guilt in order to obtain a divorce; as a result, there is no proof that either spouse committed a sin.
Irreconcilable disagreements, or a couple’s inability to communicate effectively any longer, are the most common cause of divorce.
Incurable insanity is another justification for divorce, which occurs when one spouse is unable to support the marriage because of an uncurable mental illness.
When one spouse satisfies the residency requirements and submits the necessary paperwork with the court, same-sex divorce in California is permitted without a showing of cause.
California’s Requirements for Same-Sex Divorce
In order to be eligible for a same-sex divorce in California, the spouses must adhere to particular residency, marital, and asset-related standards. Here are a few of the key prerequisites.
Requirements for residency
To be eligible to file for a same-sex divorce in California, one of the two following conditions must be satisfied:
You both married in California as same-sex partners, and either of you has lived there for at least six months; additionally, either of you has lived in the county where you are filing for at least three months.
You and your partner got married in California despite the fact that you don’t live there and that state doesn’t recognise same-sex divorces. You can petition for divorce in the county where you got married in this situation.
Domestic partners who are legally married in California are exempt from the requirement for residency. Even though none of them resides in California, they can still dissolve their relationship there.
Marriage prerequisites
You haven’t been wed or in a relationship for more than five years.
The day you separated (also known as your date of separation) was fewer than five years after the day you were married or registered as a partnership.
Neither of you are pregnant, and you don’t have any children of your own or have adopted any.
How to Start a California Divorce Process
identical-sex and opposite-sex divorces follow the identical procedures, with a few exceptions made for some same-sex couples. The procedures for filing for divorce in California are outlined in the sections below.
1. Completing these forms
The petitioner is the spouse who filed the case. The petitioner needs to finish the following paperwork:
The FL-100 Summons for Petition—Marriage/Domestic Partnership (Family Law) Type FL-110
Fill out the Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)—Form FL-105/GC-120 if one has children under the age of 18 with their spouse.
2. Submit the paperwork to the court clerk and pay the necessary filing fees.
3. Hand out the initial batch of court papers.
According to California law, the receiving spouse must be made aware that the divorce procedure has begun. One must “serve” their spouse with copies of all court documents in order to accomplish this.
4. Complete and distribute the necessary financial disclosure forms.
The financial disclosure documents need to be turned in no later than 60 days following the divorce petition’s filing. In order to share the assets and obligations evenly, these forms give each spouse detailed details regarding what they each owe, both individually and collectively.
- Form FL-140, “Declaration of Disclosure,”
- Form FL-142, “Schedule of Assets and Debts,”
- Form FL-150, Income and Expense Declaration
All recent two-year tax returns must be included in the disclosure documentation.
The receiving spouse must be served with copies of the paperwork, which must be done by a person who is at least 18 years old and not the petitioner.
5. Submit the Disclosure Declaration Regarding Service Declaration
This is the FL-141 form. Create two duplicates of this document, and then submit both to the county clerk. The copy will be returned with a “Filed” stamp, and the clerk will keep the original.
Do Same-Sex Divorces Come in a Variety of Forms?
Depending on their circumstances, same-sex couples in California may have a variety of choices for dissolving their domestic partnership or marriage. Here are a few different kinds of same-sex divorce that could occur in California.
Divorce
The legal process of ending a marriage or domestic partnership and settling matters like property division, spousal support, child custody, and child support is known as divorce.
If the divorce is uncontested and the parties can complete the necessary paperwork themselves, the divorce can be completed without a lawyer. However, if there are complicated concerns or disagreements involved, it is advised to speak with a lawyer.
Summary Dissolution
A summary dissolution is a simpler and quicker approach to end a domestic partnership or obtain a divorce. It’s less expensive and requires fewer paperwork than a typical divorce.
Annulment
A legal procedure known as an annulment establishes that a marriage or domestic partnership was never legitimate or recognised by the law.
Contrary to divorce, an annulment requires one spouse to demonstrate that there was a valid legal ground (called a ground) that existed at the time the marriage or partnership was formed.
Possible grounds for annulment include the following:
Fraud: One partner deceived or concealed something crucial that had a direct impact on the union or partnership.
Force: were used to compel one spouse to enter into a marriage or partnership.
Incest: The spouses are blood related.
Bigamy: One partner was already married or involved in a domestic partnership.
Underage: One of the spouses was under 18 years old and did not have court or parental permission.
Incapacity: One spouse was incapable of understanding and consenting to the marriage or partnership due to mental illness, intoxication, or another circumstance.
In the annulment procedure,
submitting legal documents to the court, paying a filing fee, serving the other spouse with the documents, appearing in court, and receiving the judge’s decision.
Factors to Consider Before a Same-Sex Divorce
The issue has now been resolved at the federal level after several years of changing legislation and status. The laws of your state, however, should be consulted if your circumstance is exceptionally complicated. For those who are in civil unions, for instance, ending the partnership may require establishing domicile in the state where the union was performed. However, if your marriage was valid, you can now file for divorce in any state where you live.