Divorce is the dissolution of a marriage that allows a person to remarry, if they desire. As far as the divorce law in California is concerned, the law of same-sex divorce is identical to the laws of traditional divorce.

A court’s role in a California same-sex divorce is to help the divorcing couple come to an agreement as to how to divide their marital property (vehicles, real estate, jewelry, shared banking accounts, etc.) and debt responsibility, as well as child custody and spousal support, if necessary.

Reasons for Same-Sex Divorce in California

California is a “"no-fault" divorce state”; this means when filing for a divorce, there is no need to prove that anyone is at fault due to actions such as infidelity, desertion, imprisonment, cruelty (domestic abuse), etc.

The married couple only needs to notify the court about “irreconcilable differences” that have led to a breakdown of the marriage in order to start the divorce proceedings. However, fault may be considered by the court as a factor in dividing property or awarding alimony.

Same-Sex Divorce Eligibility Requirements in California

Only distinct circumstances allow California judges to legally enter same-sex divorce decrees. One of the two following requirements must be met to fulfill these eligibility requirements for same-sex divorce filing in California:

  1. You and your spouse entered into a same-sex marriage in California; in addition: 
    1. either of the spouses has resided in the state for a minimum of six months; and 
    2. at least one spouse has resided in, for a minimum of three months, the exact Californian county in which you plan to file; or
  2. You and your spouse entered into a same-sex marriage in California, BUT you are not a California resident AND you reside in a state that does not recognize same-sex divorces. 
    1. In this situation, you must file in the county in which your California same-sex marriage certificate was issued.

In cases where these requirements aren’t met, you can still file a marital separation agreement and wait until you have met the residency requirements (residing six months in the state of California and residing at least three months in the county in which you plan on filing for divorce) to file for same-sex divorce.

Are there Different Types of Same-Sex Divorce?

Although the law in California is one of no-fault divorces, this does not mean that both parties will consent to the divorce. The ability to get a no-fault divorce does not mean the same-sex divorce will be quick or without obstacles and issues. This becomes especially prevalent when it comes to dividing shared sentimental property or more complex property such as retirement accounts, investments, or income earning property.

An uncontested same-sex divorce can be defined as a disintegration of marriage, that is consented to by both parties, and in which there is no disagreement as to how marital property or debt needs to be divided, and no child custody or support issues need to be resolved by the court. Outside of court, the same-sex couple usually enters into special agreements, usually a marital property agreement or a child custody agreement, to handle these issues preemptively.

However, if either property division, child support, or custody are disputed, the divorce becomes a contested same-sex divorce. The divorcing couple must then litigate any issues in court, and that court will decide the outcome of any and all contested issues.

Are There Any Child Custody or Support Concerns for Same-Sex Parents?

In California, same-sex parent child custody or support cases are supposed to be treated equally under the law, similar to any other child custody or support case involving opposite-sex parents. This means that when making a determination regarding child custody or support, California courts will rely on creating an arrangement that is in the best interest of the child. However, same-sex couples can face unique custody issues.

For example, if a donor sperm was used and the child is biologically related to one parent, and not to both, one parent may not be considered the “natural parent” of the child. In contrast, in cases involving implanting an artificially inseminated egg from one partner into the other partner, the California Supreme Court has stated that both parents are considered to be “natural parents.” 

However, in both of these situations, it is important to note that the California Family Code has recently been expanded in relation to child support and custody cases of same-sex couples who held children out as their own and have now seperated. In complex cases like these, it is important to consult with an experienced family law attorney, especially in cases of suspected discrimination by judges.

Do I Need a Lawyer for a Same-Sex Divorce in California?

It is absolutely possible for a same-sex couple to get a divorce in California without representation of a qualified family law attorney; however, divorce is highly complex and often fraught with numerous complications.

For instance, same-sex divorces that are contested or involve a child are both situations that cause a divorce to become highly complex. In a same-sex marriage, only one parent is actually the child’s biological parent.

So unless the couple is able to come to a compromise on their own, the court would have to intercede and make a decision based on biological data, purported caregiver roles, and other relevant legal information in order to determine child custody.

A well qualified Californian divorce lawyer can help you navigate the same-sex divorce proceedings by assessing your assets and debts, negotiating any settlement agreements, and acting as your advocate in court, if necessary.