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Guidelines for Same-Sex Divorce in California

Getting divorced is not a walk in the park for any couple. Litigating issues such as alimony, child support, and property division can get complicated, and it can certainly bring out the worst in people. In June 2015, the Supreme Court ruled that banning same-sex marriage in the United States was unconstitutional. This may be stating the obvious, but since same-sex marriage is legalized, so is same-sex divorce. This type of divorce brings unique issues to the table because although same-sex marriage has not been legal for very long, many couples were together for years and sometimes even decades before the 2015 Supreme Court ruling. A Santa Barbara County same-sex divorce attorney can help guide you through the hurdles that arise when trying to divorce your partner.

How do I Obtain a Divorce in California?

California has a residency requirement for getting a divorce in the state. At least one spouse must be a California resident for at least 6 months or 180 days in order to file for divorce. After the divorce petition has been filed and the corresponding paperwork has been delivered to your spouse, you must wait 6 months before the divorce is finalized.
The process for obtaining a divorce in California is as follows:

  1. Petitioning spouse files for divorce – Paperwork should be filed in the county where one spouse resides. The petitioning spouse must file a petition-marriage/domestic partnership (Form FL-100), summons (Form FL-110), and if applicable, a declaration under Uniform Child Custody and Jurisdiction Act (Form FL-105/GC-120).
  2. Petition is served upon respondent spouse – The divorce paperwork must be served to the respondent spouse by an individual who is at least 18 years of age and has no involvement in the proceedings. All of the initial paperwork must be served on the respondent spouse in addition to a blank response-marriage (Form FL-120). The server of process must also complete a Proof of Service Summons (Form FL-115) and return it to the petitioner.
  3. Exchange of Financial Disclosures – Spouses must exchange financial information no later than 60 days after the petition for divorce has been filed. They must provide each other with a Declaration of Divorce (Form FL-140) and serve it to each other in the same fashion described above. The court must be alerted when this requirement has been completed. You can notify the court by filing a Declaration Regarding Service of Declaration of Disclosure (Form FL-141).
  4. Respondent spouse files a response.
  5. After a respondent spouse files a response, the divorce can proceed in a variety of ways. If the respondent does not submit a response, a default is triggered and the court will most likely grant the petitioner whatever was requested in the petition. If the respondent reaches an agreement with the petitioner but still does not file a response, this is also a default, but the petitioner will present the court with the signed, notarized agreement that was reached. A respondent may choose to file a response and cite an agreement. A respondent also may choose to file a response with no agreement, in which the proceedings would then be labeled as a “contested divorce.”
  6. If the divorce is contested, the court will schedule a future hearing. Settlement agreements can also be reached if spouses choose to take part in mediation or negotiation. If you choose to litigate, it is wise to retain a Ventura County divorce attorney in order to protect your interests and assets during divorce proceedings.

It is important to note that California is a “no fault” divorce state. This means that a divorce will be granted for a filing that cites the reason for divorce as “irreconcilable differences.”

Issues That Arise in Same-Sex Divorce Proceedings

In terms of procedure, same-sex couples file for divorce in the same way that heterosexual couples do. There are some major issues that arise that are specific to divorce for same-sex spouses. These challenges are listed below:

  • Child custody – Child custody can be difficult to ascertain since no more one than one spouse can be the biological parent. If spouses cannot come to an agreement regarding custody and visitation, the court will have to consider factors such as who the primary caregiver to the children was during the marriage as well as the children’s biological parent who is a party to the proceeding.
  • Property and asset division – While it is true that same-sex marriage has only been legal nationwide since 2015, many same-sex couples were together for years and even decades before they were able to legally marry. Thus, a court may choose to base the equitable division of assets on the length of time the couple was together rather than the length of time in which their marriage is recognized by law.

Ventura County Same-Sex Divorce Lawyer

If you are seeking a divorce, and you have questions regarding the dissolution of same-sex marriages, contact the Santa Barbara family law attorneys at the Law Offices of Bamieh & De Smeth, PLC. Our experienced divorce attorneys can answer any questions you may have about the nuances of same-sex divorce in California. Call the Law Offices of Bamieh & De Smeth, PLC today at (805) 585-5056 and schedule a free and confidential legal consultation.

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