Same-sex marriages and divorces have only been recognized in California since 2013. There was a brief effort to legalize them in 2008, but the legal registration was canceled after a few months, and all registered marriages were declared illegal. On June 26, 2013, after the Supreme Court ruled in favor of same-sex marriages and divorces, all judges in California were bound to grant a lesbian or gay divorce under the same conditions as heterosexual ones. Since then, same-sex couples have started to exercise their rights in this domain, with many of them obtaining an online divorce in California.
Same-sex divorces in California have been regulated by the family law and subjected to the standard legal procedure for the dissolution of marriages. There were laws already in place under the Family Code which dealt with post-divorce agreements. However, these laws only applied to heterosexual couples and their divorces. To make the Family Code in California applicable to the divorce for same-sex couples, it was updated with gender-neutral terms.
It is important to add that California law does not recognize a common-law marriage but can make an exception if this marriage was legally recognized by the state where it occurred.
Same-sex divorce online
For same-sex couples in California, the divorce process starts with filing papers to the court, followed by the court hearing. The spouses can avoid a divorce trial in the case of an uncontested divorce, and if they agree on the most important issues, they can do it without a lawyer. The benefits of do-it-yourself divorces include a lower cost and more privacy.
Divorce over the internet is a quick and relatively inexpensive option, especially for couples who do not have serious property issues or children. Same-sex divorce papers in California can be obtained through one of several available online services, such as Californiaonlinedivorce.com. At an affordable price of $139, same-sex couples can receive the necessary printable documents and file for divorce in California if they meet the residency requirements.
Same-sex divorce papers in California
Once the spouses decided to end their marriage, the first step is to collect accurate information on how to file same-sex divorce in California. Usually, the divorce process starts after a petition for the marriage dissolution has been submitted to the court.
Apart from the petition, the same-sex divorce forms in California vary depending on the complexity of the case and may include a property declaration, a child custody application, and other papers. You can hire a lawyer or prepare the documents yourself. If you decided to make your same-sex divorce paperwork by yourself, check with the clerk’s office in your county for more detailed information and study the local rules to avoid unpleasant surprises.
Valid grounds for same-sex divorce in California
To file for divorce in California and start a same-sex marriage dissolution, it is not necessary to provide the court with fault-based grounds for marriage dissolution. In 1969, California became the first state to pass a no-fault marriage dissolution law. However, it is required to add one of the following grounds to your petition as defined by Section 2310 of Family Code:
“Irreconcilable differences,” which result in a major marriage breakdown and inability to continue life as a couple.
“Permanent legal incapacity to make decisions.” It should be proven by “medical or psychiatric testimony” that, at the time of filing for divorce, a spouse lacks legal capacity and will permanently remain in this condition.
Custody of the Child
The Family Code, Division 12, regulates the parent-child relationship. In order to determine custody, the court is guided by the best interests of the child. The decision about child custody and visitation rights does not depend on sex, gender, or sexual orientation of either party. For same-sex partners, before the proceedings, it is necessary to establish legal parentage for a party to be considered in the custody case. A legal parent can be either biological or adoptive.
In California, there are two types of child custody:
Legal custody gives a parent/guardian the right to make decisions about the health of children, their education, and welfare.
Physical custody defines the place where children shall reside.
Both legal and physical custody can be either joint or sole.
Most of the time, judges grant joint legal custody so that both parents can make important decisions associated with child care. With joint physical custody, a child can reside with each parent for an equal amount of time.
For purposes of minimizing the detrimental effects of the marriage dissolution process for the children, parents may be ordered to attend a parenting class.
Both parents have the responsibility to support their children. Courts adhere to statewide uniform guidelines and a special formula to determine liability, which takes into consideration the following:
- Each parent’s gross income
- Percentage of time spent with the child
- Net monthly disposable income of both parents
Child support is automatically terminated, according to Sec. 3901 of the Family Law, when one of the following conditions becomes invalid:
- An unmarried child who is under 18 years old
- A full-time high school student, unless there is a documented medical condition preventing the child from attending school
- A child has not yet completed the 12th grade or attained 19 years of age and is not self-supporting
As part of a verdict, a court may order one spouse to pay support to the other. The duration usually constitutes half of the length of the marriage, excluding a long-time marriage of more than ten years.
The amount of the payment cannot be calculated by a specific formula, as in the case of child support. In each individual case, a judge considers the financial information provided by both spouses and also the following factors:
- The earning capacity of the spouse asking for support, their employment perspectives, and the need for additional training in order to get a job
- The earning capacity of a supporting spouse and their income and assets.
- Living standards for both parties
- Length of marriage
- History of domestic violence
- Other factors provided in Section 4320 of the Family Code
California follows the laws of community property, which means that all property acquired during the marriage belongs to both spouses. This is the opposite of the common law property division in some other states.
Spouses can compile an agreement that specifies what shares of property each of them will get. If, on the other hand, the couple cannot agree on the property division, this issue is transferred to the court.
How is property divided in California? Typically, a judge will divide assets equally between the spouses. For complicated cases regarding the issues of property, it is highly recommended to hire an attorney.
In cases when the parties cannot come to a mutual agreement on several issues regarding the conditions of marriage dissolution, they may opt for an alternative dispute resolution method called mediation. This includes the participation of a qualified, unbiased person who guides spouses through the process of negotiation and helps them reach an amicable agreement.
The spouses can opt for mediation voluntarily, or it can be ordered by the court. In disputes about child custody and visitations, a court may file a petition to resolve these matters via mediation.
Filing fees for same-sex divorce in California
In California, there is a mandatory fee of $435 for the initial petition for dissolution of marriage. This can be filed by one party of the marriage or jointly. The other party must pay the same amount of money if he or she files a petition in response. Other fees may be applied if there is a need for additional services or court motions. For example, an order to modify or enforce custody or visitation will cost $60.
The option to waive the court fees is available for those who do not have sufficient income. You may apply for a waiver of all court fees, in whole or part, or request a payment plan.
How long it will take
The minimal length of the divorce process in California is six months. The waiting period starts after the petition is filed to the court, and the respondent is served with a copy of the documents. It does not usually take more than a few days to serve a respondent, unless the other spouse is out of reach or unwilling to cooperate.
The time period also depends on the decision of how to serve the papers to the respondent. An easy and fast serving method is to ask a third party to deliver them.
For married couples with children or with valuable property, the length of a divorce can be extended to a year or more, especially if it involves a heated court trial.