Gay Marriage and Divorce in California

The gay rights movement has grown by leaps and bounds in the past decade.  Eleven years ago, Massachusetts became the first jurisdiction to allow same sex marriage.  Since 2003, 13 states have begun allowing same sex marriage. Another 12 states have had their explicit bans on gay marriage overturned and are now in the process of appealing.

Not surprisingly, gay marriage is an area of California family law that is consistently changing.  Because the law is in a constant state of growth and flux, there are some special issues that impact divorce for gay couples.  They include jurisdictional issues, issues regarding division of property, and the challenge of finding the right divorce attorney.

Prop 8 and Your Divorce

Turning to jurisdictional issues, let’s say that after Proposition 8 was overturned by the Supreme Court in June 2013 you decided to marry your partner.  Shortly after getting married, you and your spouse moved to Texas, living together for 6 months before deciding to get file for divorce. Generally speaking, a couple usually files for divorce in the state the couple resides in at the time of separation.  At issue in this hypothetical? The fact that Texas does not recognize same sex marriage and thus will not grant you a divorce.

What do you do?  Fortunately, under California law you can file for divorce in California because you were married in California.  You can also file for a same sex divorce in California if one of the spouses has resided in the state for at least six months.  While you may be able to file for a divorce in California if you live out of state, a California family law court may not be able to make decisions about joint property or children.  Thus, it is important that you talk with a knowledgeable lawyer in your state.  Each state, or jurisdiction, has its own rules regarding same sex divorce, depending on whether same sex marriage is legal or not, and the law on this issue is constantly changing.

Division of Property in Same Sex Divorces

Another issues same-sex couples face at divorce is the division of property.  Some partners have been together for decades before tying the knot. Therefore, when they file for divorce in California, it can be difficult to untangle who owns what.  It may be a good idea to talk to a Los Angels family lawyer and make a pre-nuptial or a post-nuptial agreement so if you do have to get divorced, the division of property will already be a largely settled issue.

Finally, it is important to hire an attorney who is knowledgeable about the status of gay marriage and family law.  For more information about how to file for divorce from your same-sex partner, or to discuss drafting a prenup with an expert family lawyer in Los Angeles, contact the attorneys at Walzer Melcher LLP today.