Family Law Attorneys Who Care About You

In California, do we have divorce equality?

On Behalf of | Aug 11, 2022 | Divorce

Marriage equality is a federal mandate in all 50 states, including California. However, our state also has the option for couples to choose domestic partnerships as well, including those that formed that partnership before same-sex marriage was legal. Now that marriage equality has existed for a decade, has divorce equality finally been realized?

Domestic partnerships

In California, couples can choose to marry in a traditional manner, or they can opt for a domestic partnership (DP). To form a DP, couples must form their union and register it with the secretary of state. Once formed and registered, members of a DP have all of the same benefits, rights and protections as a married couple.

Divorce vs. dissolution

For DPs looking to “divorce,” the legal mechanism is called dissolution, which is done by filing a dissolution petition in the county family court where you or your spouse reside. For a divorce, the petition is a divorce petition, but other than in name, the two procedures are, essentially, the same.

Does that mean we have finally achieved divorce equality?

Not exactly. Due to the nature of California law and the engrained traditional thinking in some in the state judiciary, same-sex divorcees may not experience divorce equality. For example, this disparity can often be seen in the child support and custody phase of a divorce.

There, biology is given preference over relationship and, sometimes, adoption. This can lead some judges to give unequal custody based on outdated ideas of parentage, when, in reality, it should be a dual or split custody arraignment.

What about property division?

Property division is another area where Newport Beach, California, same-sex couples may have a different experience than their opposite-sex counterparts. If the couple was together for a long period of time prior to the marriage, the property division process will be very different from the typical opposite-sex divorce.

This is because for all that property acquired prior to the marriage, the family law judge may award it to the person who is on the title, rather than split the property as part of the marital estate.

Contractual solutions

For Orange County same-sex couples, even ones who are not thinking about divorce, it is a good idea to make sure that both parties’ understanding of the relationship is enshrined in a contract. This could be a cohabitation agreement, postnuptial agreement or some similar contractual arrangement. This will ensure that your rights are protected.