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Issues in Same-Sex Divorces

Law Office of Karen S. Brown June 8, 2022

Same Sex Couple ArguingIf you’re going through a divorce or considering divorce, you likely have dozens of questions running through your head. How long will it take? How do we split assets? Where will the children live? Will I have to pay alimony? Every couple has their own issues to tackle, but if you’re married to someone of the same sex, you likely have a different set of concerns. If you’d like to know more about pursuing a same-sex divorce and are in the Los Angeles County area, call the Law Office of Karen S. Brown to speak with an experienced family law attorney. She proudly serves clients in Long Beach, Brentwood, Beverly Hills, Santa Monica, Brentwood, Ventura County, Orange County, and San Bernardino County, California.

Same-Sex Marriage in California

Same-sex marriage was legalized nationwide in 2015 with the landmark Supreme Court ruling of Obergefell v. Hodges, but California residents have enjoyed this right since 2008. This means that same-sex couples enjoy the same rights and responsibilities as any married couple and can also pursue divorce under the same laws as a heterosexual couple. However, because these marriages have only been legitimate in the eyes of the law for a relatively short period of time, there are some issues you may need to be aware of.

Common Issues in Same-Sex Divorce

  • Length of Marriage: California was one of the first states to legalize gay marriage, but it’s only been codified for 14 years, and many same-sex couples have been together for much longer than this. During divorce proceedings, this time often isn’t taken into consideration. Additionally, if you were in a domestic partnership before marriage, you may also have to dissolve this before you’re considered “legally” divorced.

  • Asset Division: When dividing assets in a divorce, California operates under a community property model. This means that any property or asset that was acquired during the marriage should be split equally between the two parties. However, a gay divorce may blur these lines if the couple has been together for many years but wasn’t legally able to marry when they wanted to. If they purchased property together or separately prior to the marriage, it becomes unclear what’s considered “community” property, and you may need to pursue special exemptions from the court. 

  • Child Custody: Same-sex couples with families have been raising children together for years regardless of what the state or federal law says. Because of this, a divorcing couple with children may have one parent who is “legal” (either because they were the birth mother or had children from a previous relationship), but the other partner has only informally adopted the child. If the non-biological parent never adopted their spouse’s biological child, this can create major issues when making custody decisions. Unfortunately, the law favors the biological parent, and the non-biological parent will have to fight for their parental rights. 

  • Same-sex alimony: Not all divorcing couples will need to worry about alimony. However, if it does become necessary, a judge will commonly look at the length of the marriage to decide how long the alimony payments should last. In some cases, they’ll consider cohabitation before marriage when calculating the amounts, but this isn’t always the case. If you’ve been with your spouse for a number of years but have only been married for a short amount of time, you may not be able to receive as much alimony as you would have had you been married the whole time.

  • Tax Concerns: Even though same-sex couples have the right to marry, they’re still restricted in some ways by both state and federal tax structures when they divorce. This can affect how you’re able to divide investments or retirement accounts, oftentimes causing you to lose more money than a heterosexual couple would.

Skilled & Compassionate Advocacy

If you’re looking for a divorce attorney in California who has experience working with same-sex couples and can help you avoid potential issues, reach out to the Law Office of Karen S. Brown. From her offices in Los Angeles County, Karen S. Brown can serve clients throughout Southern California, including Ventura, Orange, and San Bernardino County and Beverly Hills, Encino, Studio City, Hancock Park, Santa Monica, South Bay, Pacific Palisades, Brentwood, Santa Monica, Torrance, and Long Beach.