For gay and lesbian couples, the process of getting divorced is generally the same as it is for opposite-sex husbands and wives. However, despite some advances in the social acceptance of same-sex marriage, there are still some unique aspects to same-sex divorce.
Potential Challenges in a Gay or Lesbian Divorce in California
If you are preparing to go through a same-sex divorce in California, here are four issues you may face during the process:
1. Establishing Parental Rights
For opposite-sex couples, the husband is presumed to be the father of a child born during the couple’s marriage. For same-sex couples, no such presumption applies.
If you and your spouse went through the process of legally establishing parentage, then you should not have any issues when it comes to establishing parenting rights in your divorce (aside from the issues that confront all parents regarding the division of parenting time). However, if you are not currently legally recognized as your child’s mother or father, then this is a matter that you will need to address before dealing with custody and visitation in your divorce.
2. Determining the Duration of Your Marriage
In a California divorce, the duration of your marriage is important for two reasons: (i) it is a factor in determining the amount and duration of alimony (if any); and, (ii) the date of marriage establishes the dividing line between “separate” and “community” property. If you got married in California after June 26, 2013 (or in any other state after June 26, 2015), then the date of your marriage should be conclusive.
On the other hand, if you cohabitated for a significant period of time before you were legally able to marry, then there is a possibility that this could raise questions with regard to alimony and the division of community property.
3. Distribution of Retirement Assets
Due to the vestiges of the Defense of Marriage Act (DOMA), same-sex spouses may need to take certain additional steps in order to divide their retirement assets during their divorce (if one or both spouses’ retirement plans qualify as community property). As explained by the IRS:
“If [a retirement plan’s] terms are inconsistent with [United States v.] Windsor or Revenue Ruling 2013-17, a retirement plan must . . . [be] amended to comply with Windsor and Revenue Ruling 2013-17. For example, a plan must be amended if it defines ‘spouse’ by reference to section 3 of DOMA, or only as a person of the opposite sex.”
4. Access to Account Records and Employment Information
Unfortunately, despite the equal protection afforded to same-sex spouses in California in Hollingsworth v. Perry and in the rest of the country in Obergefell v. Hodges, gay and lesbian spouses continue to face challenges in many practical respects.
For example, in some cases same-sex spouses may face difficulties in obtaining access to account records and employment information during their divorce. While companies are now legally-required to treat same-sex spouses equally, it is possible that you could face challenges in obtaining this information if your spouse does not disclose it voluntarily.
Preparing for the Divorce Process
From collecting important legal documents (such as proof of parentage or an amendment to your retirement plan) to prioritizing your assets that qualify as community property, there are several steps involved in preparing for a divorce. For some tips on planning ahead, you can read: 5 Steps To Prepare for a Divorce.
Request an Initial Divorce Consultation in North County, San Diego
If you are contemplating a divorce and live in the North County, San Diego area, we encourage you to contact us for a confidential initial consultation. To request an appointment with divorce attorney and Certified Family Law Specialist Richard M. Renkin, please call 619-299-7100 or inquire online today.