The Different Challenges of a Same Sex Divorce

In California, the right for a same-sex couple to legally marry was once-and-for-all enacted after the U.S. Supreme Court overturned a statewide ban on gay marriage on June 28, 2013. But while same-sex couples can now blissfully enjoy marriage equality, divorce equality is still playing catch up. From splitting assets to child custody rights, the details of divorce that are often clear in a heterosexual marriage can be a little more cloudy for same-sex couples.

Table of Contents

Before same-sex marriage became legal, many homosexual couples entered into a Domestic Partnership. Now, under the tenets of California law, to file for divorce both the marriage and the domestic partnership need to be dissolved as one dissolution does not automatically negate the other. Usually, this can be accomplished in one legal action, but it must be done properly and is often best executed with the help of an experienced same sex divorce attorney. There are also nuanced tax filing consequences for a same-sex couple that may not necessarily apply to a heterosexual couple.

Same Sex Divorce: Time Matters

One of the biggest hurdles couples face in a same-sex divorce is determining when the marriage actually began. The duration of the actual marriage will dictate whether spousal support should be granted and how the couple’s assets will be divided. So, say for example, if a same-sex couple cohabitated for 15 years, then married legally for five years before divorcing, it’s not entirely clear if that union should be judged as 20 years total or just the five. In these cases and in your county, getting advice from a divorce family lawyer would be appropriate if that’s where you reside.

Obviously, the longer the duration of the marriage, the more weight will be placed on what a lower-earning spouse will stand to receive in spousal support and for how long. The date of the marriage also helps determine a specific timeline for defining what is community property and what is not. If there was a good amount of time that a same-sex couple cohabited before marriage (or before entering into a domestic partnership), then questions could be raised in court regarding the division of community property acquired at some point during the relationship.

To further muddy the waters, same-sex marriage was actually first legalized in California in 2008 for five months until voters approved a ban in November of that year. It wasn’t until five years later, when the U.S. Supreme Court ruled that the ban was no longer enforceable allowing same-sex marriages to commence again on June 28, 2013. So if a couple was married during the initial five-month period before the ban, consult a family law attorney to sort out how that timeframe folds into the entirety of the union.

Determining Child Custody in a Same Sex Divorce

For heterosexual couples, the male is obviously considered the father of a child born during the couple’s time together. However, in a same-sex relationship, the presumption of father or motherly roles are blurred.

Unless legally established parentage rights had been filed during the marriage, this can become a difficult and potentially messy debate especially if both partners vie for full custody. This is an especially tricky area for same-sex divorce and, if you live in California, you will benefit from finding a same sex divorce attorney who can help you negotiate.

Mediation or Collaboration are always the preferred ways to settle these matters rather than proceeding to Litigation, and handing your private and personal affairs to a judge. This is especially true when it comes to a same-sex divorce where, in some cases, a judge may not fully comprehend the subtle differences that a gay couple face, particularly when it comes to child custody and parenting.

Through the process of Collaborative Mediation with the assistance of a Family Law attorney by their side, each spouse can determine what they think is in the best interest of their children. Whether equally shared custody or child custody favoring one spouse, mediation allows a positive settlement for the family where gender difference plays no role in determining the outcome. The process of Mediation and Collaborative Mediation allows the children to see both spouses equally in a positive light.

From determining the actual legally recognized period of cohabitation or marriage to understanding the definition of assets as “community property” in the relationship to the always delicate struggle of child custody, you need a Family Lawyer who understands the differences that a same-sex couple face in a California divorce. The Family Law offices of Leon F. Bennett has worked with same-sex couples for all Family Law matters including divorce for over 35 years and can assist both straight and homosexual couples navigate the choppy waters to a peaceful resolution.

About Divorce Family Lawyer, 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. Whether you’re in need of Los Angeles divorce mediation expertise or a same sex divorce attorney, Leon F. Bennett, Esq. is an expert Woodland Hills divorce attorney who will get the desired results for you and your family.

Contact us today to request a consultation.