Quick Answer Same sex divorce in California uses the same procedures as opposite sex divorce since the United States Supreme Court’s decision in Obergefell v. Hodges (2015) and California’s earlier In re Marriage Cases (2008). Same sex couples married in California or elsewhere file divorce petitions using Form FL-100 at the family court in their county. Same sex divorces face unique issues including determining the actual marriage start date when couples were in earlier registered domestic partnerships or married multiple times due to changing legal landscape, parentage determinations under California Family Code section 7611 for children conceived through assisted reproduction or adopted, and out of state recognition issues for couples who married in California but moved to states with different historical recognition. California Family Code section 297.5 grants registered domestic partners the same state law rights as spouses, though federal recognition differs.
Table of Contents
The Legal Background
Same sex marriage has had a complex legal history in California. Understanding this background helps explain unique aspects of same sex divorce today.
California became one of the first states to recognize same sex relationships through registered domestic partnerships in 1999. Domestic partnerships expanded significantly in 2005 under California Family Code section 297.5 to grant same sex partners the same state law rights as spouses.
Same sex marriage in California has a complicated timeline. In May 2008, the California Supreme Court in In re Marriage Cases (2008) 43 Cal.4th 757 ruled that California’s prohibition on same sex marriage was unconstitutional. Same sex marriages began on June 16, 2008. In November 2008, Proposition 8 amended the California Constitution to prohibit same sex marriage. The marriages performed between June and November 2008 remained valid, but no new same sex marriages could be performed.
Proposition 8 was challenged in federal court. The case eventually went to the United States Supreme Court, which in Hollingsworth v. Perry (2013) dismissed the appeal on standing grounds, allowing the federal district court ruling against Proposition 8 to stand. Same sex marriages resumed in California in June 2013.
The United States Supreme Court in Obergefell v. Hodges (2015) 576 U.S. 644 finally established a nationwide constitutional right to same sex marriage. Since 2015, same sex couples have had full marriage equality throughout the United States.
Filing for Same Sex Divorce
Since Obergefell, the procedural process for same sex divorce is identical to opposite sex divorce. Same sex couples follow the standard California divorce process using the same forms, fees, and procedures.
The filing process:
- Confirm 6 months California and 3 months county residency
- Complete Form FL-100 (Petition for Dissolution)
- Complete other required forms based on circumstances
- File at the family court (in San Bernardino County, at 247 West Third Street, San Bernardino, CA 92415, phone (909) 521-3101)
- Pay the $435 filing fee or submit fee waiver
- Serve the other spouse
- Proceed through the case to resolution
- Wait the 6 month period under California Family Code section 2339
Determining the Marriage Start Date
Determining when a marriage actually began can be complex for same sex couples. The marriage start date affects community property characterization, length of marriage for spousal support calculations, and other significant issues.
Common scenarios for same sex couples include:
- Married in California in 2008 between June and November
- Registered domestic partnership before California marriage allowed
- Married in another state then again in California after Obergefell
- Long term relationship before marriage was legally available
- Married in multiple jurisdictions due to uncertainty about legal recognition
Courts must determine when the marriage actually began for legal purposes. This is straightforward when there is a single clear marriage date, but more complex when multiple ceremonies, jurisdictions, or relationship statuses are involved.
Earlier Registered Domestic Partnerships
Many same sex couples were in registered domestic partnerships before they could marry. The interaction between earlier domestic partnerships and later marriages affects various legal issues:
Conversion to Marriage
Some couples converted their domestic partnerships to marriages when marriage became available. Others maintained the domestic partnership and also married. Yet others dissolved the domestic partnership before marrying.
Property Acquired During Partnership
California Family Code section 297.5 grants registered domestic partners the same property rights as spouses. Property acquired during a domestic partnership is community property to be divided equally. If the domestic partnership continued through to marriage, all property acquired throughout the entire relationship is community property.
Length of Relationship for Support
For spousal support purposes, California considers the length of the marriage. However, when calculating relationship duration for couples who had a domestic partnership before marriage, courts may consider the total time in registered relationships. This can be particularly important for reaching the 10 year long term marriage threshold under California Family Code section 4336.
Property Division in Same Sex Divorce
Property division for same sex divorces follows California’s community property law under California Family Code section 760. The same rules apply as for opposite sex couples:
- Property acquired during marriage is community property
- Property owned before marriage is separate property
- Gifts and inheritances during marriage are separate property
- Community property is divided equally
- Quasi community property rules apply for property acquired in other states
The challenge for some same sex couples is identifying when the marriage began and what was acquired during the marital relationship versus before.
Parentage Issues
Parentage issues are often more complex in same sex divorces than in opposite sex divorces because children may not be biologically related to both spouses.
Assisted Reproduction
Many same sex couples have children through assisted reproduction. California Family Code section 7613 provides that a spouse or registered domestic partner of a person undergoing assisted reproduction is the legal parent of any resulting child, if the spouse or partner consented to the assisted reproduction. This presumption protects the non biological parent.
Adoption
Same sex couples often adopt children through stepparent adoption, second parent adoption (where available), or joint adoption. Adoption creates full legal parentage for both parents. Adoption protections are particularly important when families travel to states that may not fully recognize parentage based on marriage alone.
Holding Out as Parent
California Family Code section 7611 establishes presumptions of parentage based on holding out as a parent. A person who receives a child into their home and openly holds the child out as their own may be presumed to be a parent, even without biological connection.
Custody and Visitation
Once parentage is established, custody is decided under California’s standard best interest of the child analysis under California Family Code section 3011. Same sex parents have the same custody rights and considerations as opposite sex parents.
Custody of Children
Custody disputes in same sex divorces face the same legal standards as opposite sex divorces. The best interest of the child standard under California Family Code section 3011 applies regardless of parental sexual orientation. Both parents have equal rights and responsibilities to seek custody and visitation.
Specific issues that may arise include:
- Parentage challenges by non biological parents
- Out of state recognition of parentage
- Cultural or religious considerations in custody arrangements
- Coming out conversations with children during divorce
- Specific custodial considerations affecting LGBTQ children
Same Sex Couples and Federal Benefits
Since the Obergefell decision and the earlier Windsor decision (which struck down the federal Defense of Marriage Act), same sex married couples have the same federal benefits as opposite sex couples:
- Joint federal tax filing
- Social Security spousal benefits (with 10 year marriage rule)
- Federal employee health and retirement benefits
- Military spousal benefits
- Immigration sponsorship rights
- Federal estate tax marital deduction
These benefits apply to legally married same sex couples regardless of where they live. The benefits do not apply to registered domestic partners under federal law, which remains a key distinction between domestic partnership and marriage.
Out of State and International Issues
Same sex couples sometimes face unique out of state issues:
Recognition of Parentage
Most states now recognize same sex parentage based on marriage, but some states have been less consistent. Adoption decrees provide stronger nationwide protection than presumptions based on marriage alone. Same sex parents sometimes complete adoptions even when they are already legal parents under California law, to ensure recognition in other states.
International Travel
International travel with children of same sex parents may require additional documentation. Some countries do not recognize same sex parentage. Same sex parents should travel with adoption decrees or other documentation establishing parental rights.
Divorce Jurisdiction
Same sex couples who married in California but moved to states with less developed family law may face jurisdictional complications in divorce. California has jurisdiction to grant the divorce if either spouse meets the 6 month state and 3 month county residency requirements, but custody and support issues may need to be addressed in the state where the family currently lives.
Tax Considerations
Same sex married couples face the same tax issues as opposite sex couples in divorce:
- Property transfers between spouses incident to divorce are not taxable under Internal Revenue Code section 1041
- Joint tax returns can be filed through divorce date
- Alimony was tax deductible to payer for divorces finalized before 2019; now neither deductible nor taxable
- Children can be claimed by the custodial parent for tax purposes by default
- Retirement account divisions through QDRO avoid early withdrawal penalties
Domestic partners face different federal tax treatment because federal law does not recognize domestic partnerships. This can complicate planning around the divorce.
Common Same Sex Divorce Issues
Same sex divorces sometimes involve specific issues less common in opposite sex divorces:
- Property acquired during long pre marriage relationships before legal recognition
- Disputes about whether earlier domestic partnership or marriage controls
- Mixed gender expression or identity issues
- Family of origin tensions affecting custody
- Religious community connections affecting community standing
- Travel and immigration concerns for non US citizen partners
- Workplace considerations including non discrimination protections
Frequently Asked Questions
Q: Is same sex divorce different from opposite sex divorce in California?
A: The legal procedures are identical since the Obergefell v. Hodges decision in 2015 and California’s earlier In re Marriage Cases in 2008. Same sex couples use the same forms, file at the same courts, pay the same fees, and follow the same procedures as opposite sex couples. The substantive law including community property, custody, and support is the same. Some same sex divorces involve unique issues including determining the marriage start date when couples were also in earlier domestic partnerships, parentage of children conceived through assisted reproduction, and out of state recognition issues.
Q: How is the start date of a same sex marriage determined?
A: The marriage start date is the actual date of the legal marriage. For couples married in California between June and November 2008 during the brief window before Proposition 8, the marriage start date is the actual wedding date. For couples married after June 2013 when same sex marriage resumed in California, or after Obergefell in 2015 in other states, the start date is the wedding date. For couples who had earlier domestic partnerships followed by marriages, the marriage date is the wedding date, but the domestic partnership creates separate community property rights for the partnership period under California Family Code section 297.5.
Q: What if we had a domestic partnership before getting married?
A: California Family Code section 297.5 grants registered domestic partners the same property rights as spouses. Property acquired during the domestic partnership is community property under California state law. When you later marry, the marriage starts fresh as a separate legal status. However, the existing community property from the domestic partnership continues to be community property. For practical purposes, the entire continuous registered relationship period creates community property, though the technical marriage date is the actual wedding. This becomes important for federal benefits, which only recognize the marriage period.
Q: What if my partner gave birth and I am not the biological parent?
A: California Family Code section 7613 protects the non biological spouse or registered domestic partner of a person undergoing assisted reproduction as the legal parent, if they consented to the assisted reproduction. This presumption applies automatically in most circumstances. However, for stronger nationwide protection, second parent adoption or joint adoption is recommended. California Family Code section 7611 also provides presumptions of parentage based on holding out as a parent. Once parentage is established, you have the same custody and visitation rights as a biological parent in divorce.
Q: Do federal divorce benefits apply to same sex marriages?
A: Yes, since the Supreme Court decisions in Windsor (2013) and Obergefell (2015). Federal recognition of same sex marriages is complete. Same sex married couples can file federal taxes jointly, receive Social Security spousal benefits (with the 10 year marriage rule), participate in federal employee benefits, receive military spousal benefits, qualify for immigration sponsorship, and use the federal estate tax marital deduction. These benefits apply regardless of where the couple lives. Federal benefits do not apply to registered domestic partnerships, which is a key distinction.
Q: Can a same sex spouse adopt our child during the marriage?
A: Yes. Even if a non biological spouse is already a legal parent under California law through marriage or domestic partnership, second parent adoption or stepparent adoption provides stronger protection. Adoption creates legal parentage that is recognized everywhere under the United States Constitution’s Full Faith and Credit Clause. This is particularly important for families who may travel or move to states with less developed family law. The adoption process is straightforward for established families and typically takes 3 to 6 months.
Q: What if we got married in another state but live in California?
A: California recognizes valid out of state marriages under California Family Code section 308. You can file for divorce in California if you meet the 6 month state and 3 month county residency requirements. The marriage date is the date you actually married, regardless of where it occurred. Out of state assets acquired during the marriage are quasi community property under California law and treated like community property for division purposes. The same procedures apply as for California marriages.
Q: Are there issues unique to same sex parents in custody cases?
A: Custody is decided based on the best interest of the child under California Family Code section 3011, regardless of parental sexual orientation. However, some same sex parents face specific issues. Parentage challenges by non biological parents can arise, though California law strongly protects established parentage. Out of state recognition of parentage may be less reliable in some jurisdictions. Family of origin tensions can affect custody if extended family members do not accept the parents’ relationship. Religious community connections may be affected. Working with a board-certified family law specialist familiar with LGBTQ family law ensures these issues are properly addressed.
Bottom Line
Same sex divorce in California uses the same procedures and substantive law as opposite sex divorce since Obergefell v. Hodges and the earlier In re Marriage Cases. Unique issues include determining the marriage start date when couples had earlier domestic partnerships, parentage determinations for children conceived through assisted reproduction, and out of state recognition concerns. California Family Code section 297.5 grants domestic partners state law rights similar to spouses, though federal recognition differs. Federal benefits including taxes, Social Security, and immigration apply equally to same sex married couples since 2015. Working with a board-certified family law specialist familiar with LGBTQ family law ensures these issues are properly addressed.
If you are facing a same sex divorce, a free consultation with a board-certified family law specialist can help you understand the specific considerations that apply to your situation.
About the Author
Donald Glen Haslam, Esq. is a Board-Certified Family Law Specialist by the California State Bar Board of Legal Specialization and a senior partner at Haslam & Thorne, LLP in Ontario, California. He has practiced family law exclusively for over 40 years, representing families throughout San Bernardino County and the Inland Empire. Reviewed by Brian George Thorne, Esq., Board-Certified Family Law Specialist.
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Disclaimer: This article is for general informational purposes only and does not constitute legal advice. Same sex family law involves specific considerations that vary by case. For advice specific to your situation, consult with a licensed family law attorney. Reading this article does not create an attorney-client relationship with Haslam & Thorne, LLP.
