Orange County Same Sex Divorce Attorney

A lot has changed for LGBTQ Californians in the last 25 years. There have been many moments in our history where our state blazed the trail for members of the LGBTQ community to achieve marriage rights. There have also been moments where this progress was overshadowed by backpedaling and the loss of these same rights by opposing litigation.

In 2013, Californians saw recognition of marriage equality at the federal level, establishing a more permanent win for the LGBTQ community. However, because marriage equality was already taken away and reissued so many times over the last several decades, LGBTQ Californians may also face unique challenges when it comes to getting divorced, negotiating child custody and property division, and establishing alimony or child support obligations.

Same-Sex Marriage vs Domestic Partnership in Orange County

Many same-sex couples assume that their legal and financial rights are the same regardless of whether they’re in a marriage or a domestic partnership. While marriage and domestic partnerships have many similarities in California, they also have significant differences, especially when it comes to filing taxes, child custody, and insurance policies.

When comparing the two, same-sex couples who are in a marriage generally have more rights. For example, married couples have the right to:

• File taxes jointly
• Be included in health and life insurance policies
• Transfer assets without taxation
• Receive social security benefits as a couple
• Seek child custody in a divorce, even if the child is not biologically their own

To some extent, same-sex couples who are in a domestic partnership may have some of these same rights, but to a lesser or modified extent. For instance, if you and your partner are in a domestic partnership and your partner dies, you are entitled to a third of the benefit of their social security benefits, as opposed to receiving half if you had been married.

The same goes for inheritance. If you’re married and your partner dies without a will, you are considered the next of kin and will automatically inherit their assets. As a domestic partner, you are not entitled to your partner’s assets unless you are named in their will. 

How Do I Dissolve a Domestic Partnership in California?

While marriage generally grants couples more legal and financial freedom, LGBTQ couples who want to end their domestic partnership may find that it is a lot easier to do so than getting a divorce. However, this is only true under the following conditions:

• You have been in a domestic partnership for less than five years
• You have no children as a couple, and neither of you is pregnant
• You both consent to dissolution and to divide all property and debt acquired as a couple
• The property that you own as a couple is valued at less than $47,000
• You have less than $6,000 in debt as a couple
• You do not own land other than your current home
• Neither of you is seeking financial support from the other

If you meet these requirements, the next step is to file a Notice of Termination of Domestic Partnership with the State of California. Bring the form unsigned to a notary public, pay the fee, and mail the signed form to the secretary of state. After a six-month waiting period, the State of California will terminate your domestic partnership.

If you don’t meet the conditions above, you’ll need to complete what is known as a “general dissolution” to dissolve your domestic partnership. General dissolution is similar to a traditional divorce, which is outlined in the section below.

Requirements for Same Sex Divorce in Orange County

California divorce law applies the same to same-sex and opposite-sex couples. Same-sex couples will need to follow the same procedures when dividing assets, deciding who gets custody of children, and navigating post-divorce financial support such as child support or alimony.

One critical difference that same-sex couples may face, however, is if they currently have a domestic partnership in addition to a marriage. Same-sex couples have been legally able to marry since 2013. However, they’ve been able to register as domestic partners since 2000.

This means that many same-sex couples in California went from being domestic partners to getting married without dissolving their domestic partnership first. If this applies to you and your partner, you will need to dissolve your domestic partnership along with the filing of the divorce.

One other very interesting point with regard to same-sex divorces, they do not require the same residency requirements as opposite-sex couples.  This is underwood to be the case because there are states that do not recognize same-sex marriages and it may be required to move to California just for the purposes of getting divorced, so they don’t make you wait the same 6-month waiting period for the residency requirement as opposite-sex couples.  

How Our Lawyers Can Help Divorcing Same-Sex Couples

As family law attorneys with a combined expertise spanning over 80 years, we are aware of the challenges that the LGBTQ community and so-called “non-traditional” families face in the eyes of the law. Our duty as Orange County same-sex divorce attorneys is to provide compassionate and effective legal counsel for individuals who may feel blindsided by a legal system that does not always represent them. Specifically, our team can help with the following aspects of an LGBTQ divorce:

• Property division
• Child custody
• Child support
• Alimony
• Negotiating disbursements due to pre or postnuptial agreements

Dividing Property in a Same Sex Divorce

Dividing property can be more complicated for same-sex spouses. Because same-sex marriage has only been legal since 2013, there may be many same-sex couples who have been cohabitating together before getting married. This means that although their assets may have only been legally combined since 2013, they may have shared other assets long before then.  This therefore adds the complication of factoring in the respective separate property interests from before the marriage was legal.

During the asset division portion of divorce proceedings, the court usually begins by addressing property that was acquired during the marriage. In Orange County, the court divides this property equally between both parties. Property that is acquired before the marriage date is addressed separately.

If there is a disagreement between spouses on who owns what, the court will make a decision for them. Though this process can be tricky, our Orange County lawyers are fully equipped to tackle LGBTQ-specific issues that may come up during the property division phase of a divorce.

Who Gets Custody in a Same Sex Divorce in Orange County?

The topic of parentage can be an especially sensitive topic in the LGBTQ community. Some same-sex couples decide to adopt, while others may have a surrogate or utilize IVF treatments. All of these options present different legal challenges when it comes to establishing parentage in court.

If you and your spouse have already established parentage of your child prior to the divorce proceedings, determining child custody will be no different than any other divorce. However, if you and your spouse have not done so, you will need to prove your role in your child’s life.

If you’re a biological parent, determining parentage through DNA should establish your parentage. If you are not a biological parent, you may still be able to make a case as a de facto parent. You and your lawyer can accomplish this by submitting any evidence to the court that shows you still have an established, long-term parental relationship with your child even though you aren’t related.

If your child was born while you and your partner were still married, establishing the presumption of parenthood will be fairly straightforward. If your child was born out of wedlock, it will likely be a little more complicated.

If you are not able to establish yourself as a parent before divorce proceedings begin, you may still have a right to visitation. As experienced same-sex divorce attorneys in Orange County, we can help you build a case for child custody rights in scenarios where parental relationships are not always well-documented.

Child Support Payments between Same-Sex Parents

Once it establishes child custody arrangements, the court may also address child support if one parent has sole custody or primary custody and the other has limited custody. The court designates child support obligations in same-sex divorces the same way that they would during any other child custody hearing. But like determining child custody, designating child support obligations can be complicated if one parent hasn’t legally established their parentage.

For example, if a mother gives birth to a baby with the help of a sperm donor, and her partner helps her raise the child as a second mother, her partner is never legally established as a mother even though she has raised their child since birth. When the couple divorces years later, the court may award primary custody to the biological mother but not her partner, because she was never established as the child’s mother by the court.

Unless the non-biological mother is able to establish herself as a parent in the eyes of the court, and of course there are ways to do this, she not only will likely lose her visitation rights, but the biological mother will also lose her right to sue her former spouse for child support. This is why it is in the interest of both parents to establish parentage before divorce proceedings begin.

Determining Alimony in a Same Sex Divorce

Orange County divorce courts do not base alimony requirements on gender or sex. This means that even though you were in a same-sex marriage, your obligation to pay or your right to receive alimony will be no different from heterosexual divorces. Divorces have varying results, however, as California law bases alimony obligations on the following considerations:

• Standard of Living: The court will consider the standard of living established during the marriage. The goal is to help the lower-earning spouse maintain a lifestyle similar to what they had during the marriage.
• Duration of Marriage: The length of the marriage is a significant factor in deciding the amount and duration of alimony payments. For marriages of short duration (typically less than 10 years), the duration of spousal support is often limited to half the length of the marriage. For longer marriages, spousal support may be awarded for a longer period or even indefinitely.
• Income and Earning Capacity: The court will assess the income and earning capacity of each spouse. This includes not only actual income, but also potential income based on education, training, work experience, and job opportunities.
• Assets and Debts: The division of assets and debts between the spouses may also influence alimony. For example, if one spouse receives a significant portion of the marital assets, they may be required to provide more support to the other spouse.

If any prenuptial or postnuptial agreements were made between you and your spouse before or during your marriage, the court will also pay special attention to these to determine whether alimony can even be enforced.

Call Our Orange County LGBTQ Divorce Lawyers Today

There are many individuals who feel that because same-sex marriages have been legal for many years, LGBTQ Californians face the same issues with divorce as everyone else. As we’ve indicated, this is simply not true.