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3 key considerations in a same-sex divorce

On Behalf of | Sep 29, 2021 | Blog, Divorce

Divorce takes a toll on any family. Breaking up and separating your lives is an emotional and stressful process.

Same-sex marriage has been legal since 2015. All lesbian and gay couples can now seek the same legal protections as any other couple getting divorced. While a same-sex divorce is virtually like any other divorce, there are a few important things to consider.

1. Potential child custody issues

For couples consisting of a man and a woman, the man is the presumptive father of children born during the marriage, and the woman is the presumptive mother. Those presumptions do not apply to same-sex couples. If you took steps as a couple to legally establish both partners as parents during your marriage, parental rights should not be difficult to establish during the divorce. If you are not currently recognized as a legal parent of your child, you should address that before you divorce so that you will have equal parental rights for child custody decisions.

2. The duration of the marriage

The duration of the marriage informs spousal support, alimony and the division of assets. The date of the marriage also helps determine community property. In same-sex marriages, a couple may have cohabitated for many years before getting married once marriage became legal. There may be challenges in deciding if the marriage began at the beginning of cohabitation or once the union was legally recognized.

3. Residency requirements

Typically in California, you or your spouse need to have resided in the state for the last six months and in the county where you file for divorce for the last three months. However, if you married in California and then moved to a state that does not recognize the dissolution of same-sex marriages, you do not need to meet this residency requirement in order to get a divorce in California. Nonresidents can get divorced in the county where they got married.

Before same-sex marriage was legal, many couples entered a domestic partnership. When same-sex couples divorce, both the marriage and the domestic partnership must be officially dissolved as one does not automatically cancel out the other. One legal action can usually accomplish both, but it must be specifically addressed.