Are all California divorces the same?

On Behalf of | Aug 3, 2022 | Divorce |

Before same-sex marriage was legalized in the United States, the fight for marriage equality was long and complicated in California. Today, California law officially treats opposite-sex and same-sex marriages and divorces the same. However, in practical terms, there are some important considerations for same-sex divorce.

Domestic partnerships

Prior to the federal allowance of same-sex marriage, California allowed domestic partnerships, and even after that allowance, the state still allowed couples to form a domestic partnership.

If a domestic partner wishes to divorce, they must file a dissolution with the appropriate county family court where they reside. This process is treated essentially the same as a traditional divorce, with child custody and visitation issues, property division, debt allocation, alimony, etc.

Child support and custody

The laws that control child support and custody are based on biology and legal adoption by opposite-sex partners. Indeed, California had to redo many forms and change a lot of terminology to allow for same-sex parentage. However, since same-sex partners cannot have children in the traditional manner, judges can often struggle with deciding child support and custody issues.

This can lead to some judges falling back on old, traditional norms, like a preference for a biological mother. A lesbian couple may find that if one of them carried the baby, they may get preferential treatment.

Property division

Same-sex couples have unique challenges in the property division process as well that are not faced by opposite-sex couples. This is because of the nature of the law that allowed their relationships, an inability to divorce in some cases and much longer courtship periods. This means that the same-sex couple’s marital estate is not, generally, a true accounting of the assets originally meant to be jointly owned.

Along with solving child custody issues, these property division issues can be resolved with a pre-nuptial or post-nuptial agreement, in addition to other agreements, as one’s relationship may dictate. The key is to resolve potential issues now.