With the right to same-sex marriage comes the right to same-sex divorce. Same-sex spouses in California can file for a divorce under the same laws as any married couple. The spouse requesting the divorce will need to file a divorce petition with the appropriate court. Depending on whether the divorce is amicable and whether the spouses agree on all divorce issues (spousal support, property division, child custody and support), the spouses may then either file their divorce settlement agreement or request a court hearing to resolve contested issues. While the traditional divorce process is followed in a gay divorce, there are three special areas of concern.
Same Sex Divorce Property Division
Traditional property division rules fail to address that many same sex spouses lived together as if they were legally married for years before legal marriage was even possible. For the purposes of a gay divorce ruling, property acquired before the legal date of marriage is treated as individual property unless the spouses show a prenuptial or other agreement to the contrary.
Additionally, while retirement account transfers or distributions, investment sales, and similar transactions triggered by a divorce are often shielded from federal income taxation, federal law only recognizes heterosexual marriages. Therefore, same-sex may be subjected to tax penalties if the property division isn’t handled carefully.
Child custody decisions have been traditionally unpredictable due to the judge applying a subjective “best interests of the child” standard. This is, even more, the case in same sex divorces. There is no longer a presumption that both parents are the biological parent, and even if the couple had a child together with the assistance of a surrogate parent, the parent with no biological ties to the child may be denied parental rights if they did not legally adopt the child. Even where the law allows parental rights to be granted, some judges may be uncomfortable granting them due to their own biases and may need additional persuasion.
Eligibility to File for a Gay Divorce
As with any divorce, gay couples must meet residency requirements for the county in which they want to file for a same sex divorce. To be eligible, at least one spouse must have been a California resident for at least the past six months and at least one spouse must have been a resident of the county where the divorce will be filed for at least the past three months. Spouses meeting the residency requirements may file for divorce in California whether or not they were married in California. For those not meeting the residency requirements, a legal separation is available immediately and may be used until residency requirements are met.
Spouses who were married in California and moved to a state that will not grant a gay divorce are granted an exception to the residency requirements. They may file a divorce in the county where they were married.
If you’re looking for an attorney with years of experience handling the unique challenges surrounding same sex divorces, call the Law Office of Steven L. Fritsch today.