Understanding Same-Sex Divorce in California
No couple likes to consider the possibility of divorce, but it is a reality for same-sex and heterosexual couples alike. If you are facing the possibility of a same-sex divorce, it is important to contact an experienced attorney who has the legal knowledge to be able to protect your legal interests during this difficult time.
Isn't All Divorce the Same?
Mostly, yes. Since the U.S. Supreme Court issued the Obergefell v. Hodges opinion on June 26, 2015, same-sex marriage must be recognized nationwide as a matter of federal constitutionality. Of course marriage provisions inevitably require divorce provisions, and – from a procedural standpoint – same-sex divorces are issued nationwide in the same manner as heterosexual divorces.
However: just because the procedure is the same doesn't mean that courts aren't faced with other complications. Here are just a few potential problems:
- Community property: In a community property state like California, marriage creates a new legal entity known as the “marital community”. Upon divorce, property is classified as either community property or separate property of one spouse. After all community debts and assets have been identified, they are divided equitably between the parties. In order to do so, the court must determine when the community began and ended. Generally, a marital community begins when the couple is married. But what if a same-sex couple acquired property prior to the Obergefell ruling? Although community property would not be created during that period under current law, one spouse could argue that the couple would have been married had they not been legally prohibited from doing so. That spouse could also introduce evidence at trial that the couple intended to form a marital community, and their property should therefore be treated as such.
- The history of same sex marriage in California: On June 16, 2008, the California Supreme Court deemed same-sex marriage to be constitutional. However, in November 2008, the voters of California passed Proposition 8, banning the institution. The Proposition was appealed through the federal court system and eventually struck down in June 2013. This confusing history also leaves open questions of when the marital community began during this perplexing timeline. Also complicating the issue: various states allowed various forms of same-sex marriage during that time. Many same-sex couples chose to marry outside of California in states which allowed it. Some couples even visited various states as they recognized same-sex marriage and had multiple marriage ceremonies.
- Child custody: Perhaps most heartbreaking of all is the effect of divorce upon a child. During divorce, child custody is determined after an initial finding of legal parentage. For many same-sex couples, adoption documents have been made in one spouse's name. Artificial reproductive technologies are similarly problematic: because the law simply has not caught up with the technology, legal parentage sometimes follows the biological parent, or even a donor … not the spouse who intended to act as parent to the child.
How an Los Angeles Divorce Attorney Can Help
Same sex divorce often raises a number of complicated issues that can have a significant impact on your overall quality of life. As a result, it is important for anyone going through a same-sex divorce to retain an attorney to make sure their legal rights are fully protected. Some of the specific ways that an attorney can help make the process of getting a divorce go as smoothly as possible include the following:
- Explain Your Rights – Many people who are considering a divorce are not aware of their rights. When you meet with an attorney, he or she will fully explain your legal rights and options.
- Provide Advice – The things that you say and do in the weeks and months leading up to your divorce could have an effect on its outcome. Your lawyer will let you know about what to do and what not to do during this period.
- Communicate on Your Behalf – When you retain an attorney to represent you, he or she will communicate with your spouse or his or her attorney for you. In some cases, this can facilitate reaching a settlement, as many divorcing spouses are unable to communicate in a constructive way.
- Represent You in Court – If your divorce ends up in court, you lawyer will represent you and present your arguments in way to which the judge hearing your case will be responsive.
Call a Los Angeles Divorce Lawyer at Our Law Firm
Any divorce presents challenges, but the procedural requirements of a same-sex marriage can make the divorce process even more difficult. Let the experienced family law attorneys at Furman & Zavatsky help you navigate the technicalities of same-sex divorce so that you can focus on rebuilding your life. Call (818) 528-3471 or contact us online to schedule your free consultation today.