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Helping Same-Sex Clients Navigate their Divorce Process
Same-sex couples have regained the right to legally marry after the Supreme Court overturned California’s ban on gay marriage in 2013. However, the family laws addressing same-sex divorce still have a lot of catching up to do, leaving some LGBTQ couples in a difficult position when a divorce becomes necessary. The attorneys at Khosroabadi & Hill explain how same-sex divorce works in California, the challenges a gay couple may face during divorce and the ways an attorney can help each spouse through the process. If you are going through a divorce or have questions about LGBTG divorce in San Diego, call Khosroabadi & Hill at 858-240-2093.
How Do Same-Sex Divorces Work in California?
Same-sex divorce works similarly to heterosexual divorce in California. The spouse who wishes to get a divorce may file a petition with the court as long as they meet the residency requirements for filing in California. The parties may then get an uncontested divorce in which they agree on all terms of the divorce. If one spouse is not in agreement, the divorce becomes contested, and the case may need to go to trial.
When it comes to property division, the state’s community property laws are also applicable to same-sex couples. This means that any assets acquired throughout the marriage are divided equally between the two spouses. In addition, divorcing couples should also divide any debts in the same manner.
Like in any other type of divorce, the court will take into consideration the best interest of the child when making any decisions regarding custody and support. The court will consider the parent’s ability to provide a stable home, their relationship with the child, and any other factors that may affect the child’s wellbeing.
What Are Some of the Unique Challenges Same-Sex Couples May Face During Divorce?
As mentioned previously, family courts still have a long way to go to catch up with the unique issues a same-sex divorce may bring. Some of the most common challenges an LGBTQ divorce may pose include property division, alimony, and parenting rights. Before they were able to be legally married, many LGBTQ couples entered into a domestic partnership, which is similar to a marriage. However, it is important to be aware of the fact that a divorce does not dissolve a domestic partnership. The partnership can be dissolved at the same time as the marriage – only after both the marriage and the domestic partnership are dissolved will the parties be considered single and allowed to re-marry others.
It may also be worth consulting an attorney to determine how the duration of the relationship may be counted in cases where alimony or spousal support is necessary. This is because California spousal support rules are largely based on the duration of the marriage. In practical terms, the time the couple has lived together as if they were married (with a domestic partnership or another arrangement) may or may not be considered by the court when deciding alimony matters. Likewise, the same situation may make it challenging to determine what counts as marital property and separate property, thus affecting how community property may be divided. Finally, establishing custody and parental rights may also be a complex issue in some same-sex divorce cases.
How Are Custody and Parental Rights Decided in an LGBTQ Divorce?
The legal presumption that a husband is the legal father of a child who was born during the marriage may not necessarily apply to LGBTQ couples. If one spouse gives birth to a biological child, the other spouse must establish parental rights around the time the child is born in order to be legally recognized as the child’s other parent. If the couple has adopted a child together, then both spouses may have equal parenting rights.
In general, if both parties in a same-sex divorce are legally recognized as the child’s parents, the case is handled similarly to any other divorce. The parties may agree on custody, support, and visitation matters and write their own agreement for approval by the court, or they may take the case to the courtroom and let a judge decide for them if they cannot reach an agreement. The court will make decisions based on the best interests of the child. If either party is not legally recognized as the parent of their child, they may need to settle this matter first (usually by obtaining a parentage order) before being able to assert their parental rights in a custody case. It is always best to consult a skilled family law attorney to discuss your case if you have questions.
Why Should I Hire an Attorney for My Case?
Same-sex couples may face unique challenges when getting a divorce, leading to potential conflicts and delays that could quickly turn an amicable divorce into a legal battle. Even if you plan to get an uncontested divorce or keep your case out of the courtroom altogether, it may be extremely beneficial for you to hire an attorney to guide you along the way and help you stand up for your rights. The divorce attorneys at Khosroabadi & Hill have assisted many members of the LGBTQ community in San Diego and surrounding areas, and we are ready to help you navigate your divorce as well. No matter if you just need a legal ally to answer questions and help you prepare your divorce documents or if you need an aggressive litigator who is ready to defend your interests in a trial, the attorneys at Khosroabadi & Hill are here to assist you. Contact us at 858-240-2093 and request an initial consultation to discuss your case.