The law governing same-sex unions has continued to change throughout the United States, and California’s laws are no exception. At the Schoenberg Family Law Group, P.C., we offer experience in navigating these shifting waters. Our experienced lawyers provide representation in actions for marriage dissolution, and advise our clients in the San Francisco Bay Area on their legal rights in this evolving area of the law.
A Brief History Of Same Sex Unions in California
Presently, California does not recognize a distinction between same-sex and opposite-sex marriages. Any couple can now obtain a marriage license and wed, regardless of that couple’s sexual orientation.
This was not always the case. This millennium has seen many trials, tribulations, and victories as citizens have demanded, and society continues to learn how to embrace, marriage equality. While there are many who remain steadfastly opposed to same sex marriage, there are more who believe that marriage should be open to all. As a result, substantial progress in effecting marriage equality has been made, both nationally and in California.
In the early 2000s, same-sex couples began requesting marriage licenses in San Francisco and Los Angeles. The California Legislature also allowed same-sex couples to enter into registered domestic partnerships commencing January 3, 2000; however, those partnerships were truncated, affording couples with hospital visitation rights and extending dependent health insurance coverage to certain government employees. In March 2000, California voters approved Proposition 22, a ballot initiative declaring that marriage should remain available only to opposite-sex couples.
California’s Domestic Partner Rights and Responsibilities Act 2003
California’s Domestic Partner Rights and Responsibilities Act of 2003 went into effect on January 1, 2005. This act preserved marriage as a union between opposite-sex couples, but nonetheless sought to provide couples who registered their domestic partnerships with the state of California with all of the state-based rights, benefits, and obligations of marriage extended to opposite-sex couples whose marriages were also registered with the state. The terminology was different, and the act only afforded state-based rights to same-sex couples, but it was a step in the right direction. The rights extended by the act include:
- Health care and medical emergency rights
- Estate planning and inheritance rights
- Government benefits
- Insurance proceeds and retirement benefits
- Parental rights, including utilization of stepparent adoption procedures
- Community property
- Financial support and child support after dissolution of a domestic partnership
- Protections upon death of a partner
- Employment benefits within the state of California
- Tax benefits within the state of California
Society continued to question the need for a distinction between married persons and registered domestic partners. As a result, in February 2004, the mayor of San Francisco directed the issuance of marriage licenses to same-sex couples; nearly 4,000 marriage licenses were issued in one month’s time. The California Supreme Court ultimately declared all of the licenses void as a legal nullity on the grounds that the mayor lacked authority to issue those licenses.
In September 2005, Governor Arnold Schwarzenegger vetoed a same-sex marriage bill which had passed in the Senate and the Assembly, reasoning that the bill would wrongfully reverse the March 2000 ballot initiative declaring that marriage can only be between a man and a woman. The former governor vetoed another same-sex marriage bill in October 2007, reasoning that the courts would need to rule on the legality of Proposition 22.
Supreme Court Ruling 2008
Thereafter, the California Supreme Court, in a 2008 landmark decision known as In re Marriage Cases, held that the right to marry is fundamental, that the right extends not just to opposite-sex couples but to any couples, and that bans on same-sex marriage were unconstitutional. Prior to this decision, the state of California did not recognize same-sex marriages; rather, it only permitted same-sex couples to enter into domestic partnerships in accordance with the 2003 Act. The Supreme Court’s decision took effect in California on June 19, 2008, when the court ordered state agencies to comply with its terms.
The effect of Marriage Cases was temporary, as on November 5, 2008, a voter initiative known as Proposition 8 passed. The proposition amended the California constitution to preclude same-sex couples from marrying. In a subsequent ruling, the California Supreme Court upheld the passage of Proposition 8 but further held that those same-sex marriages entered into between June 19, 2008, and November 4, 2008, remained valid.
Proponents of same-sex marriage mounted several legal challenges to Proposition 8. These challenges resulted in a federal district court overturning the proposition on the basis that it deprived same-sex couples of their fundamental right to marry and violated the equal protection clause of the federal constitution by irrationally restricting marriage to opposite-sex couples. The proponents of Proposition 8 requested, and the United States Supreme Court granted, review of the district court opinion. The appeal was ultimately dismissed as the proponents of Proposition 8 were not injured by the district court’s opinion.
On June 28, 2013, the Ninth Circuit lifted its stay of the federal district opinion holding that Proposition 8 was unconstitutional, and the state of California directed all county clerks to resume issuing marriage certificates to same-sex couples.
Also in June 2013, the United States Supreme Court held that the provisions of the federal Defense of Marriage Act which restricted same-sex couples from enjoying the federal benefits of marriage were unconstitutional.
Obergefell v. Hodge
On June 26, 2015, in a landmark decision, Obergefell v. Hodges, the United States Supreme Court ruled that the Constitution guarantees a right to same-sex marriage striking down marriage bans in the remaining 13 states that continued to discriminate and opened the freedom to marry to same-sex couples nationwide. Since the Supreme Court’s decision in Obergefell, same-sex spouses have the same rights and benefits as legally married opposite-sex couples, including tax relief, emergency medical decision-making power, access to divorce laws, spousal benefits, inheritance rights, and spousal testimonial privilege.
While the law has changed, same-sex couples still have the option of either marrying or entering into a registered domestic partnership. The Schoenberg Family Law Group, P.C., can help you evaluate which option is best for you and your partner. The firm can also counsel you to help you understand the difference in federal rights and benefits available depending on whether you are married or in a domestic partnership.
Establishing A Domestic Partnership In California
At present, any couple in California who meets certain requirements can enter into a registered domestic partnership. While the law has evolved to afford same-sex couples all of the rights, obligations, and benefits of marriage, the provisions of the Family Code which pertain to registered domestic partners are still in effect.
On January 1, 2012, the Family Code was amended. Any couple who meets the requirements of the domestic partnership statute may register. Under current California domestic partnership law, a couple is eligible to register as domestic partners if they:
- Are not married or a member of another domestic partnership
- Are not related by blood so that they would not be eligible for marriage
- Are at least 18 years old, or under 18 and have obtained parental or court permission
- Are of the same sex
- Are of different sexes with one party being either over age 62 or eligible for Social Security old age benefits
- Are capable of offering legal consent to enter into the partnership
If the above provisions are met, then a couple may enter into a domestic partnership by filing a Declaration of Domestic Partnership with the Secretary of State. The domestic partnership is deemed registered once the declaration is filed with the Secretary of State.
The California Secretary of State provides a useful registered domestic partnership FAQ on its website.
The establishment of a domestic partnership may require attention to detail. Because California’s domestic partnership statutes do not include all of the presumptions, rights, and duties afforded to married persons, parties entering into a domestic partnership must take caution to adopt an agreement which clearly articulates the legal rights of both parties and the legal and financial consequences should the partnership be dissolved. At the Schoenberg Family Law Group, P.C., we offer competent and compassionate legal guidance in drafting an agreement that prudently accomplishes these goals.
Dissolving A Domestic Partnership In California
Because a domestic partnership is a legally recognized union, when the relationship ends, it must be legally dissolved. Division of property, child custody, visitation, child support and alimony issues can be as complex and difficult as in a dissolution, and are governed by the same laws that apply to marital dissolution. Advice of experienced LGBT family law counsel is necessary to ensure that your rights and duties are protected as your partnership is dissolved. Further, if you are in a domestic partnership
and a same-sex marriage, both legal relationships must be dissolved. The Schoenberg Family Law Group, P.C., will work with you to ensure that you are apprised on the evolving law and the existing nuances thereof, and to ensure that your dissolution is just and equitable.
The California Family Code explicitly retains jurisdiction over all domestic partnerships registered in the state, regardless of whether the parties continue to reside in the state at the time of dissolution. Thus, should you seek to dissolve a domestic partnership but do not reside in California, we are able to assist you in dissolving that union.
At the Schoenberg Family Law Group, P.C., we go the extra distance to remain acutely aware of the changing contours of the law, and offer counsel and advice as to the fluctuations in the rights and obligations imposed upon domestic partners or same-sex married couples. This is particularly important in areas concerning same-sex unions, as recent significant changes have been made in affording the rights and obligations of marriage to same-sex couples. The firm will help you understand these open issues and the manner in which they impact your particular situation.
In addition to the issues that overlap with the termination of an opposite-sex marriage, the dissolution of a domestic partnership involves unique tax-related issues. Because federal tax law does not recognize or account for domestic partnerships, if the court orders one party to pay support to the other, the payor cannot deduct that expense and the payee has to pay taxes on it. This is a critical distinction between dissolution of domestic partnerships and marriages.
Because the Schoenberg Family Law Group, P.C. focuses exclusively on family law matters, we provide a unique focus on the specific issues relating to the dissolution of same-sex partnerships and provide you with the advice necessary to understand the conflicts between state and federal law to ensure that your partnership dissolution is just and equitable in the face of these conflicts. We use our knowledge to advise our clients about the important choices stemming from the differences between state and federal law and the way these choices affect dissolution of domestic partnerships.
Dissolving A Same-Sex Marriage In California
Under current California and federal law, there is no longer any difference between a same-sex marriage and an opposite-sex marriage. Accordingly, a same-sex marriage must be dissolved in the same manner as an opposite-sex marriage. The same laws apply, and you must obtain a judgment of dissolution in the same manner as an opposite-sex couple.
Additional complications can arise in same-sex marital dissolutions, particularly if you were in a domestic partnership prior to marriage. In that situation, you must dissolve
both the domestic partnership and the marriage (this can be done in one consolidated action). The obligations imposed on both relationships, however, are the same. Moreover, federal benefits and obligations of marriage do not extend to all aspects of domestic partnerships.
Knowledgeable And Confident Counsel
The advice of seasoned counsel in a marital dissolution is critical, regardless of whether you are a same-sex or opposite-sex couple. The Schoenberg Family Law Group, P.C., can help you navigate your dissolution and will ensure that you understand the rights, obligations, and current legal difficulties which are implicated in a marital dissolution.
Please contact Schoenberg Family Law Group, P.C. online or call us at 415.834.1120 to arrange a confidential consultation with our San Jose family law attorneys. We serve San Francisco, Alameda, Contra Costa, San Mateo and Santa Clara counties and the entire Bay Area.