The right to marry means LGBTQ couples also have rights enjoyed by other married couples, like state and federal benefits and inheritance rights. They also have the right to divorce. Navigating a same-sex divorce in California does not have to be any more complex than a traditional divorce, but there are some considerations you should keep in mind.
At Szeto-Wong Law, our LGBTQ divorce lawyer wants your divorce to go as smoothly as possible. Our divorce lawyer is here to represent your interests and inform you of your rights so that you make the best decisions for you and your family. Contact our divorce lawyer in Cupertino at (650) 425-6264 if you are thinking about an LGBTQ divorce and have questions about getting started.
How Does an LGBTQ Divorce in California Differ?
Prior to 2013, gays and lesbians were only legally allowed to marry in select states. In other states, they were allowed to live and benefit from domestic partnerships. It was the U.S. Supreme Court decision in United States v. Windsor (2013) that first granted same-sex spouses federal recognition of their marriages and declared that the federal government could not discriminate against married lesbian and gay couples when determining federal benefits and protections. This decision was followed by another U.S. Supreme Court case, Obergefell v. Hodges (2015), which ultimately paved the way for legalized gay and lesbian marriages throughout the United States.
With marriages, however, come divorces. LGBTQ couples divorce like any other married couple. Finances tend to be a fundamental reason for divorce among gay and lesbian couples as it is with heterosexual couples. There are, however, other issues that LGBTQ married couples face that heterosexual couples do not face. LGBTQ persons face discrimination. Two major stressors are discrimination in the workplace and among unaccepting family members. These stresses can negatively impact an LGBTQ marriage.
Today, gay and lesbian married couples are treated the same under the legal system when it comes to marriage and divorce. They do, however, face unique challenges when it comes to things like alimony, property division, and children.
Grounds for the Dissolution of a Same-Sex Marriage in California
There are different grounds for obtaining a divorce. Some of the grounds are fault-based and include adultery, cruelty, and abandonment. Fault-based divorces, however, are rarely used today except in rare cases where it may benefit the petitioner or in cases of covenant marriages.
All states now allow no-fault divorces, which means the married couple has “irreconcilable differences” or the marriage is “irretrievably broken”. You do not have to have a specific reason for the divorce and, as such, do not have to prove anything. With the latter said, however, no-fault divorces can still be contentious. Also, many states require a waiting period or separation period before the divorce is heard and ordered by a judge.
Most same-sex couples use no-fault as the basis for divorce, which is also true for divorcing heterosexual couples.
Can a Gay or Lesbian Partner in California Ask for Alimony?
A partner of same-sex marriage can, in the event of a divorce, seek alimony (more accurately referred to as spousal maintenance or spousal support, depending on the jurisdiction) from the other partner. Throughout the United States, state laws treat gay and lesbian marriages the same as traditional marriages: they share the same benefits any married couple enjoys, and they share the same rights during a divorce. The latter means that yes, a gay or lesbian partner in California can request alimony.
Alimony will be granted in accordance with California law. Generally, this means the judge will consider things like:
- how property will be divided
- the standard of living during the marriage
- the dependent spouse's ability to maintain that standard
- each spouse's separate income, assets, and obligations
- the length of the marriage
- whether the dependent spouse quit a job to care for children
- how long the dependent spouse has been out of the workforce
- the dependent spouse's marketable skills and if they will need to be retrained
- contributions that either spouse made to the other spouse's training, education, or career advancement
- the possibility that either spouse may acquire assets in the future (such as the maturing of stock options or a large inheritance)
- any other factors that the judge thinks should be considered.
Some jurisdictions will consider how long the spouses cohabited prior to marriage and what that cohabitation looked like (using many of the same factors listed above). Cohabitation is significant for same-sex divorces because LGBTQ marriages have only been legal for a short period, but they may have been living together as though married for many years prior to their legal marriage.
How Is Property in California Separated in an LGBTQ Divorce?
The division of property depends on whether the state recognizes community property or equitable distribution. Community property states divide the marital property equally between the parties, while states following the theory of equitable distribution distribute property in a way the court deems fair.
There is one important factor to consider: LGBTQ marriages are relatively new. Many same-sex married couples today have lived as though they were married decades prior to lawfully marrying. When property and debt are divided, however, some jurisdictions will not take into consideration those years but may only treat the couple as being together for the specific years of marriage.
This factor can fundamentally and, to at least one of the parties, detrimentally impact the division of assets and debt. So, if you have shared property and debt for 30 years but have only been lawfully married for 10 years, the courts might only consider the 10 years. That is just as important in terms of benefits, like pensions, as it is with any debt. Matters like this make it critical to speak to a same-sex divorce attorney in Cupertino. You always want to make sure in any divorce that your rights and interests are upheld.
Children of a Gay or Lesbian Divorce in California
The determination of child custody and child support in same-sex divorces can be a problematic area. There are many different scenarios that can occur, and different states are known to address these scenarios in different ways. Therefore, when children are involved in your divorce, you want to speak to an LGBTQ divorce lawyer in California to make sure you know what the law is, what to expect, and how to go about securing your interests and the best interests of your child.
Biological Parent vs. Non-Biological Parent
Is the child the biological offspring of one of the spouses? If so, some courts may only award custody to the biological parent. Other states hold that the non-biological parent can receive joint custody or visitation with the child.
One way to prevent this issue from being a factor in same-sex divorce is to have the non-biological parent adopt the child. Then, that parent will have the same legal rights to the child as the biological parent. This is also true when neither spouse is the biological parent of the child.
As long as both partners adopt the child or one spouse adopts while the other spouse is the biological parent, they will both share legal rights to the child. Then, when the parties divorce, if they are not able to agree on a parenting plan, a judge may use the same criteria as is used in opposite-sex couple divorces to determine child custody and child support.
Contact an LGBTQ Divorce Attorney in California Today
At Szeto-Wong Law we make sure your rights are upheld and your interests are protected when you undergo a same-sex divorce. Though you are granted the same rights as any other couple divorcing, your unique situation or circumstances may play a role in things like property division and parenting time. Get the best representation for yourself and your loved ones, contact our LGBTQ divorce lawyer in Cupertino today by calling us at (650) 425-6264 or completing the online contact form.