In recent years, significant strides towards equal legal rights for same-sex couples have been made, and one area where this progress is particularly noteworthy is in the realm of family law. 

Same-sex couples, like their heterosexual counterparts, have the right to marry and also the right to divorce. While the legal process for same-sex divorce is largely similar to opposite-sex divorces in California, there are unique aspects and considerations that warrant exploration. This extended article aims to provide a guide to same-sex divorce in California, shedding light on the legal landscape, potential challenges, and the unique aspects LGBT divorce.


A Same Sex Divorce Attorney in Los Angeles Explains the Process

The Legal Landscape and Divorce Process

According to Woodland Hills divorce attorney, Leon F. Bennett, California has long been at the forefront of LGBTQ+ legal rights, and this commitment to equality extends to the realm of family law. Since the legalization of same-sex marriage in 2015 with the landmark Supreme Court decision in Obergefell v. Hodges, same-sex couples in California enjoy the same rights and responsibilities as opposite-sex couples when it comes to marriage and divorce.

The process of same-sex divorce in California typically follows the same legal procedures as opposite-sex divorces. The first step is filing a petition for dissolution of marriage, commonly known as divorce. 

California is a no-fault divorce state, meaning that neither party needs to prove fault or wrongdoing to end the marriage. Instead, irreconcilable differences are sufficient grounds for divorce.

The divorce process can include coming to arrangements over property division, spousal support, child custody, child support, and the resolution of other relevant issues. Same-sex couples, like any other couples, may encounter challenges during these stages, but the legal framework is designed to treat all couples equally.

In California, the process of divorce will take at least six months. After the petition for divorce is filed in court, this waiting period starts. For couples who have children or valuable property, this process can take longer. This longer time period is also more likely if heated court proceedings occur.

same sex divorce attorney

A family lawyer specializing in same sex divorce can help gay couples more easily understand their rights in the event of a marriage breakup.


Unique Challenges for Same Sex Couples

Despite the legal strides made in recent years, same-sex couples may still face unique challenges during divorce proceedings. The different challenges of a same sex divorce can be both legal and emotional, and it’s crucial for individuals navigating a same-sex divorce to be aware of these potential hurdles.


  • Recognition of Out-of-State Marriages: In the past, same-sex couples who married in other states may face challenges related to the recognition of their marriage. However, as of the Supreme Court’s decision in Obergefell, all states, including California, are required to recognize same-sex marriages performed in other jurisdictions.


  • Parental Rights and Adoption: Same-sex couples may have children through various means, including adoption or assisted reproductive technology. Ensuring both parents’ rights are protected during a divorce, especially if only one parent is the biological or adoptive parent, can be a unique challenge. It’s essential to ensure these issues are navigated carefully to safeguard the best interests of the children involved.

  • Cultural and Familial Challenges: Some same-sex couples may face challenges related to societal attitudes and family dynamics during divorce. This can include concerns about acceptance, support networks, and the potential impact of divorce on broader LGBTQ+ communities. Emotional support and legal counsel attuned to these unique dynamics are crucial in navigating these challenges.


  • Legal Protection and Equality: While same-sex couples may face unique challenges, it’s important to emphasize the legal protections in place to ensure divorce equality. California’s commitment to LGBTQ+ rights extends to family law, with courts obligated to treat same-sex couples on equal footing with opposite-sex couples during divorce proceedings.


Financial and Asset Considerations of a Same Sex Divorce

Community Property

California operates under community property laws, meaning all assets and debts acquired during the marriage are generally considered community property and subject to equal division. This principle applies equally to same-sex and opposite-sex couples, aiming to ensure an equitable distribution of marital assets.

To more fairly divide assets in the case of same-sex divorce, it may be appropriate for the courts to reconsider traditional asset division-related precedents favored in different-sex marriages. Spouses can come to an agreement regarding how the property will be split or shared. However, if no such agreement can be made, this court will decide this issue.

If you are involved in a divorce where the division of property is a complex consideration, contacting a same sex divorce attorney is highly recommended.


Spousal Support

The determination of spousal support, or alimony, is based on factors such as the duration of the marriage, the standard of living during the marriage, and each spouse’s financial needs and abilities. The same criteria apply to same-sex couples, intending to provide fair and equal outcomes.


Child Custody and Support

In addition to alimony, child custody and support will need to be determined if children are involved. When children are involved, the court’s primary concern is the child’s best interests. This principle applies regardless of the parents’ gender or sexual orientation. 

Custody and child support decisions are made based on factors such as the child’s age, health, and the ability of each parent to provide a stable and supportive environment.

There are different categories of child custody arrangements in California:

  •  Joint physical custody: When parents each spend roughly equal time with the children following divorce, this is typically referred to as joint physical custody.


  • Sole Physical Custody: Alternatively, the court may give custody to only one parent. This outcome can occur for a number of reasons, for example, one parent residing too far away or if there is evidence of domestic abuse.


  • Legal Child Custody: This category, separate from physical custody, refers to the right to make decisions about important aspects of the child’s life, such as education, healthcare, religion, and other considerations. This, too, can be shared between parents or awarded to a single parent by the court.


Navigating the Difficulties of Divorce

Emotional Considerations

Beyond the legal aspects, the emotional toll of divorce can be profound for same-sex couples. Navigating a divorce often involves coping with grief, loss, and a reevaluation of one’s identity and future. For LGBTQ+ individuals, the experience may be further complicated by unsupportive societal attitudes, family dynamics, and concerns about acceptance within the community.

Support networks, including friends, family, and mental health professionals, play a crucial role in helping individuals cope with the emotional challenges of divorce. Recognizing the unique aspects of the same-sex marriage experience, including potential social stigmas and the need for understanding and acceptance, is essential in providing meaningful support.

It is also essential for each party in a divorce to avoid antagonizing their spouse, even if things are already heated. The more that anger, upset, or a sense of having been wronged are present, the more likely it will be difficult to reach reasonable agreements. This can result in longer, drawn-out, and more expensive court proceedings.


Importance of Legal Representation

In navigating the complexities of same-sex divorce in California, securing competent legal representation is paramount. A divorce and family law attorney  with experience in same sex divorce proceedings can provide invaluable assistance in understanding the unique challenges that may arise during the divorce process. 

These legal professionals can offer guidance on issues such as property division, spousal support, and child custody, ensuring that the rights of same-sex couples are protected and advocating for a fair and equitable resolution.

Additionally, legal representation is crucial in addressing potential discrimination or bias that same-sex couples may encounter within the legal system. While the legal landscape has evolved to prioritize equality, it is essential to have advocates who are knowledgeable about the specific nuances of same-sex divorce and can effectively navigate potential challenges.



Same sex divorce in California represents a significant milestone in the ongoing journey toward legal equality. While the divorce process will be inherently challenging, both legally and emotionally, the legal framework is designed to ensure that same-sex couples have the same rights and protections as their opposite-sex counterparts. 

By understanding the unique aspects of same-sex divorce, the divorce process, and seeking competent legal representation, individuals can navigate this challenging process with resilience and achieve ideal outcomes for themselves and their families.


About Family Law Divorce Attorney, Leon F. Bennett, Esq.

The Law Offices of Leon F. Bennett provide efficient and effective Family Law services throughout Southern California for over 35 years that satisfy you and your family’s goals. Leon F. Bennett, Esq. is an expert family divorce lawyer in Woodland Hills, Ca., who will get the desired results for you and your family. 

Contact us today to request a consultation.