The Hurdles of Same-Sex Divorce in California

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A divorce is never an easy prospect. Though everyone experiences some degree of difficulty, both logistically and emotionally, following a divorce, same-sex couples face unique hurdles. Learn how same-sex divorces work in California – and what you can expect from a proceeding.

The Legalities of Same-Sex Divorce

California was among the first states to legalize same-sex marriage. Since it is still in its infancy, many gray areas exist regarding same-sex marriage and divorce, namely the dissolution of property and other assets.

For example, common law does not exist in California. If a person was in a relationship with someone for 15 or 20 years before getting married, the courts will not take those years into account. In many cases, same-sex couples live together for long periods before marrying, which presents some challenges in dividing property in divorce.

For same-sex couples seeking divorce in California, many of the basic legalities remain the same. Under state law, a couple may file a divorce under the grounds of irreconcilable differences, with no additional explanation for the breakup. The only other requirement is that one person be a resident of the state of California for at least six months before filing for divorce.

Aspects of Same-Sex Divorce

Like any divorcing couple, members of a same-sex union must consider alimony, asset division, child support, real estate holdings, and accounts, including 401ks and pension plans. The courts will look at several factors in a divorce proceeding, including:

  • Who brought what into a marriage, and when?
  • What did each partner contribute to the marriage? What did they bring with them prior to the marriage?
  • What documentation does each spouse have to prove his or her claim to assets?

California is a community property state when it comes to the division of assets, which means that any income or assets acquired by the divorce belongs to each member of a divorcing couple equally, regardless of who earned it. However, anything accrued before the marriage – such as when a couple lived together before same-sex marriage became legal – may be separate based on who earned it.

Other Complicating Issues in Same-Sex Divorces

To further complicate matters, California courts may also consider co-mingling of assets in a divorce proceeding. As the name implies, assets co-mingle when a couple shares assets that might qualify as separate. A joint checking account, for example, might be a co-mingled asset. Even separate assets like inherited property can become co-mingled if a couple uses joint money to renovate or make improvements.

Considerations like these can make asset division a contentious and difficult process for same-sex couples. Alternative dispute resolutions like mediation and arbitration can be helpful.

Prenuptial Agreements Can Help Prevent Problems

Many experts agree that the drafting of a prenuptial agreement can be useful in preventing many of the challenges inherent in same-sex divorce – or at least streamline the process. While California law might not consider the 15 or 20 years that a couple spent together prior to marriage, a prenuptial agreement can, if a couple chooses to do so.

Same-sex marriage couples are more likely to marry later in life, which means their assets are more considerable than younger couples’ assets. A prenuptial agreement can make provisions for asset division, alimony, even child support. This can aid in the process of dissolving a marriage and help couples move on more quickly.

Same-sex divorces in California face many challenges and considerations, particularly when it comes to asset division and property accrued in the years before a marriage. Each same-sex couple should carefully consider their options and the practicality of a prenuptial agreement, depending on their unique circumstances.

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