Special Considerations for LGBTQ Divorce / by Cassandra Hearn

In 2015, the Supreme Court of the United States issued its landmark opinion in Obergefell v. Hodges, which held that the right to marry was a fundamental right protected by the United States Constitution. California’s “Prop 8” was also overturned in a case called Hollingsworth v. Perry, and as a result, same sex couples can get married in the state of California. Unfortunately, with marriage there is often divorce. Despite advances in the area of gay rights in recent years, a same-sex divorce can raise special issues.

If you and your partner were married, then you will have to obtain a divorce if the relationship has disintegrated.  This will be treated in the identical manner as any other marriage.  Questions may arise, however, if you and your spouse instead have a registered domestic partnership.  It is important to note that domestic partnerships create the same responsibilities and rights as a marriage.  As California is a community property state, this means that any property acquired after the domestic partnership is established will be subject to equal division by the court in the event of dissolution of the partnership.  If you and your partner have opinions on how current or future assets should be handled, then you should speak to your attorney about a pre-registration agreement.  Any such agreement must meet the same requirements as a pre-nuptial agreement.  These requirements can be highly technical, and you should discuss it with an experienced attorney.  Although domestic partnerships are protected like a marriage under state law, this is not always true under federal law.  There may be federal tax implications for transferring property between partners.  Moreover, even though domestic partners will file their state income taxes jointly, they must file their federal taxes separately.

Child custody and visitation can present some unique challenges. For example, If the child was born before the marriage, is biologically related to only one of the parents, and the other parent never adopted the child into the marriage, this can pose an enormous hurdle to the non-biological parent in terms of obtaining custody and visitation. Moreover, the stereotypical “caretaker” roles in a heterosexual relationship may be shared differently when the parents are of the same sex. It is important that each parent demonstrates to the judge what the parents’ roles have been in the life of the child in a custody determination.

If you are facing a same-sex divorce or wish to dissolve your partnership, call us today at 619-800-0384 for a consultation. We have experience representing same sex clients and helping navigate the unique issues surrounding dissolution.