Same-sex marriage has become commonplace, but it is important to remember how short its history really is. The U.S. Supreme Court ruled that same-sex marriage should be recognized nationally in the case Obergefell v. Hodges just eight years ago, and the Respect for Marriage Act (RFMA) only repealed the Defense of Marriage Act (DOMA) in 2022. Even in progressive California, same-sex marriage has only been legal since 2013.
If that seems like a short timeline, it’s no wonder that same-sex divorce is still relatively uncharted territory. While there is no legal difference between heterosexual and homosexual marriages, some issues are much more likely to crop up when LGBTQ parents get divorced. These issues can lead to unexpected complications during your split if you aren’t prepared. Below, we explain the most useful ways to prepare yourself and your family for your LGBTQ divorce.
1. Confirm Instead of Assume Parental Rights
Your gender and sexual orientation have no bearing on your parental rights. In California, custody is awarded based on the child’s best interests, but gender is explicitly excluded from consideration. The California Family Code section 3011 states, “the court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interests of the child.”
This is excellent news for LGBTQ parents, but it’s not the whole story. Only a child’s legal parents are automatically granted the right to custody in a divorce. While your gender may not disqualify you from custody, your official parental status might.
Today, California law automatically grants married couples equal parental rights over any children adopted or born into the marriage, through surrogacy or otherwise. However, this is not true in all states. Additionally, if you had children before you were legally married, you or your spouse may not be listed on their birth certificate or adoption paperwork. If this is the case, the party not named may not have parental rights.
Without parental rights, you will struggle to receive custody or visitation with your children. Confirming that you have these rights before proceeding with your divorce is crucial to avoid an unnecessary custody battle.
2. Understand Child Support Concerns
Child support is just as important as custody and tied just as tight to parental rights. California considers the financial support of children to be a fundamental obligation of parenthood. However, only legal parents are required to pay support.
For this reason, having your spouse legally recognized as your children’s parent is crucial, even if you want sole custody. Until and unless they are recognized as a parent, they cannot be ordered to pay child support. This could deprive both you and your children of valuable financial assistance for years to come.
3. Remember to Dissolve Your Domestic Partnership
While same-sex marriage has only been legal in California for a decade, the state has recognized domestic partnerships since 1996. Thousands of couples statewide registered a domestic partnership years before they could get married. The state does not require couples to dissolve these partnerships before marrying, as long as they marry each other and not another party.
If you became domestic partners before getting married, you’ll need to dissolve the partnership along with your marriage. This is as simple as adding an extra form to your filing in California. However, the process may be more complex if your domestic partnership is registered in another state. It’s best to seek qualified legal counsel if you have any questions about the process.
4. Prepare for Spousal Support Complications
Spousal support is often a contentious subject when couples divorce. The recency of legalized same-sex marriage only amplifies this. For example, a common issue in same-sex divorces is determining the length of the marital relationship. California courts often use marriage length to set the duration of alimony orders.
This can pose problems if a couple cohabitated for decades before they could finally get married. Typically, state courts do not consider cohabitation as part of the marital relationship for the purpose of spousal support. However, domestic partnerships normally do count. It could be the difference between an order that lasts for five years and one that lasts indefinitely.
5. Consider Mediation
The various complications of same-sex splits can make going to court for your divorce a long and stressful process. As such, it may be worthwhile to settle your divorce through mediation instead.
Mediation allows you and your spouse to collaborate on ending your marriage. Instead of bringing every issue before a judge and having them decide, you can work together to find a mutually satisfying settlement. This collaboration streamlines the process and can help you avoid unjust orders related to child custody, child support, and spousal support.
Mediation is also better for your kids. It encourages cooperation between you and your spouse, which reduces the likelihood of arguments and family tension. It also shields your children from the stress and fear involved in courtroom custody battles. While mediation is not for everyone, it is a valuable option for families and spouses who can remain amicable or at least professional with each other.
Expert Family Lawyers for LGBTQ Parents
If you’re preparing for a same-sex divorce, you should consider working with an attorney who understands what makes your family unique. At the Law Offices of Diane J.N. Morin Inc., we have decades of experience helping families of all kinds navigate the legal system.
Our skilled attorneys can help you avoid the potential pitfalls of LGBTQ divorces in California, whether you prefer mediation or litigation. Get in touch with our Palo Alto family law firm to learn more about how we can help your LGBTQ family navigate this difficult time.
