When same-sex couples divorce, they face the same issues as any other couple. They must determine how to divide assets and co-parent children.
While same-sex divorces are essentially the same as any other, there are a few issues to be aware of.
Parentage and custody
In California, if a married woman gives birth to a child, the law presumes that her spouse is the child’s other legal parent. However, in some cases, it is necessary to establish legal parentage through a court order or a Declaration of Parentage.
If you have not established legal parentage, it can make custody issues more complicated. However, the court can consider other factors in determining child custody, such as whether or not the non-biological parent acts in a parental role.
Same-sex marriage was legal in California before it became federally legal, so many couples traveled from other states to marry in California. Generally, if you married in California but do not live in the state, you can divorce in the county where you married.
Property division is often a challenging aspect of divorce, especially if you lived together for many years prior to legally marrying. If this is the case, you may have a considerable amount of separate and commingled property in addition to marital property.
In general, separate property consists of property you acquired before marriage or assets you inherited before or during the marriage. However, this property can become commingled with marital property if you invest it in joint accounts or spend marital funds on it. For example, a house you purchased while single may become commingled property if you and your spouse renovate it together.
Divorce is rarely simple. If you are divorcing your same-sex spouse, it is important to consider all facets of the situation.