Articles Posted in Same Sex Couples

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custody and same-sex divorceIf you are in a same-sex marriage and considering a divorce, you are entitled to a divorce with essentially the same procedural map as heterosexual couples. There are, however, potential complications related to child custody issues that may require additional attention. Seeking the help of a local divorce attorney could make the path ahead easier.

Same-Sex Couples and No-Fault Divorce

In California, getting a no-fault divorce is the norm. That means that neither party will be blamed or shamed, and assets will be equally divided. There is no reason to expect debt and asset issues to be any more or less complicated than they are for any other couple.

Same-Sex Couple Child Custody and Visitation

There could be, however, issues with child custody if only one partner has a biological or a legal connection to the children. Legal rights are determined based on several potential questions:

  • Was the child born into a civil union, domestic partnership, or marriage in California or in a state where parental rights are given to a non-biological parent?
  • Was the child legally adopted by the non-biological parent?
  • Did the parents jointly adopt the child?
  • Was the child conceived prior to marriage, but with the full intent of sharing child-rearing responsibilities?
  • Are both partners’ names on the birth certificate?
  • Can de-facto parentage be established?
  • Is the biological parent unfit, opening the option for a third-party custody petition (family code 3041)?

In some situations, a biological parent who is not involved in raising a child may have refused to waive parental rights, leaving no room for a stepparent adoption.  In other cases, children have already been adopted by one partner prior to the marriage. The new partner in the marriage is a step-parent. As a stepparent, one may have engaged in all the normal parenting activities and responsibilities that the children needed. Nevertheless, a step-parent’s legal standing with regard to custody is virtually non-existent under normal circumstances.  

Essentially, establishing parentage is the best way to be assured of the rights and responsibilities associated with being a parent, including gaining physical and/or legal custody, obtaining visitation rights, receiving or paying child support, and/or sharing childcare and medical costs.

On the other hand, even if parentage is not established, the court does have discretion to provide visitation under California Family Code Section 3100. While a step-parent may not have a legal claim to custody, reasonable visitation is clearly possible to anyone who has a vested interest in the welfare of the children. Continue reading →

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same-sex divorceSame-sex divorce. The convoluted history of same-sex marriage in California involves years of legal battles, which ultimately gave same-sex couples the definitive right to marriage. It follows, then, that same-sex divorce has become a part of the California legal scene. That being said, are divorces among same-sex couples more complicated than those between traditional couples? In some instances, the intricacies of the problem can, indeed, seem overwhelming. That is when a local divorce attorney can be a great asset.

Requirements for Every Divorce

When anyone wishes to dissolve a marriage in California, there are some basic requirements, regardless of the specifics of the case. For example, residency requirements must be met. Those requirements include:

  • At least one person must have lived in California for a minimum of six months prior to filing;
  • At least one of the spouses must have resided in the same county for three months or more prior to filing.

What if neither partner is a resident? They can simply file for a legal separation, and amend that when residency is established. If there are no children or significant assets involved, some couples may qualify for a summary dissolution.

Beyond residency, in most divorces there is some amount of wrangling over child custody, visitation, and support; asset and debt division; and payment costs associated with the divorce itself. These issues can be more complex for same-sex couples.

Same-Sex Divorce and Child Custody

Frequently, children in same-sex unions are connected biologically to only one parent. When the court is asked to make decisions related to custody and visitation, that biological information must be considered, along with caregiver roles and other issues related to the best interests of the child.

Same-Sex Divorce and Asset Division

When a couple divorces, assets accumulated during the course of the marriage are equally divided. In the case of same-sex couples, marriage has only been a legal option for a limited time period. What if they have been together for years prior to getting married? Should asset division include items accrued during those years? Arguably, because marriage was prohibited during those years, they worked as a couple to build a life together.

Same-Sex Divorce for Out of State Couples

Many same-sex couples who were married in California may now live elsewhere. If they live in a state that does not recognize same-sex marriage and will not dissolve one, individuals may still dissolve the marriage by filing in the California County in which the marriage occurred.  However, if neither partner resides in California, there may be jurisdiction issues when it comes to deciding issues related to property division, assets and debts, and children. Continue reading →

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same-sex divorce residencyCertain California same-sex divorce residency requirement exceptions. Though the right to marry for same-sex couples is quickly expanding throughout the country, there are still a significant number of states that refuse to recognize same-sex marriages. In order to legally marry, many same-sex couples travel to states like California for their official wedding ceremonies, and then return to reside in their home states.

While this plan works well for couples who remain happily married, it does cause significant complications for couples who wish to get divorced. This is because states maintain a residency requirement for any couple seeking to dissolve their marriage, meaning that family courts generally lack the jurisdiction to grant divorces for out-of-state couples. However, if a same-sex married couple lives in a state that does not recognize same-sex marriage, the courts will likely refuse to grant a divorce because, in the eyes of that state, there is no marriage dissolve. In fact, in many states, same-sex married couples are engaging in lengthy legal battles challenging state laws simply to get a divorce.

Instead of challenging state laws, many same-sex couples in such states decide to simply live separately, though remain legally married. While this may work for some time, it can cause problems down the line. For instance, if one of the spouses is suddenly injured or falls ill, the other spouse may be asked to make important medical decisions. One spouse may continue to hold a growing interest in the others retirement accounts or other benefits, and they may retain rights to inherit property upon the others death. Certain debts accrued during the separation may still count as marital debt if the couple never obtained a divorce. For these reasons and more, it is not always wise for unhappy couples to live separate lives while remaining legally married.

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