Same-Sex Divorce in California — How It Works and What to Expect

Same-sex couples in California have the right to marry and the right to divorce on the same terms as opposite-sex couples — a legal reality since the California Supreme Court's In re Marriage Cases (2008) decision and federally since Obergefell v. Hodges (2015). The divorce process for same-sex married couples follows the same Family Code provisions, community property rules, and custody standards as any other California dissolution. However, specific historical circumstances — the period when same-sex marriage was not legally recognized in California — create issues that some same-sex couples must address in their divorce proceedings.

Same-Sex Divorce Under California Family Code

A same-sex married couple seeking dissolution in California files the same petition (FL-100), follows the same six-month waiting period under Family Code §2339, complies with the same financial disclosure requirements under Family Code §2104, and is subject to the same community property division rules under Family Code §760 as any other married couple. The grounds for dissolution — irreconcilable differences under Family Code §2310 — apply equally. There is no separate same-sex divorce process or form.

Community Property for Couples Married Before or During the Proposition 8 Period

Between 2008 and 2013, same-sex marriage in California had a complicated legal history. The California Supreme Court recognized same-sex marriage rights in June 2008, Proposition 8 passed in November 2008 banning same-sex marriage, and same-sex marriages resumed following federal district court rulings. Couples who married between June 2008 and November 2008, and couples who married after Proposition 8 was struck down, each have a specific marriage date that establishes when community property began accruing.

For couples who registered as domestic partners before obtaining a marriage license, the community property period and the property characterization may extend back to the domestic partnership registration date. Under Family Code §297.5, registered domestic partners have the same rights and responsibilities as spouses under California law — meaning property acquired during a registered domestic partnership is community property, even if the couple later married and the marriage is now being dissolved.

Converting a Domestic Partnership to Dissolution

Some same-sex couples registered as domestic partners under California law without subsequently marrying. A registered domestic partnership is dissolved through the same Family Code framework as a marriage — either through the simplified termination procedure under Family Code §299 (for partnerships of five years or less meeting strict eligibility criteria) or through a full dissolution proceeding. The grounds, process, financial disclosure requirements, and property division rules are identical to marriage dissolution. A domestic partnership cannot be informally dissolved by simply stopping to act as partners — a formal legal proceeding is required.

Parentage Issues in Same-Sex Divorce

Children born or adopted during a same-sex marriage or domestic partnership have two legal parents under California law. Both spouses or partners are presumed parents under Family Code §7611. Custody and child support in a same-sex dissolution are determined by the same best interests of the child standard under Family Code §3011 that applies to any other custody proceeding.

Issues arise more frequently when a child was born to one parent through assisted reproduction before the couple legally married or registered as domestic partners, when only one parent adopted a child, or when parentage documentation is incomplete. In these situations, establishing legal parentage of the non-biological or non-adoptive parent before proceeding with the dissolution is important — dissolution of the relationship does not automatically resolve parentage questions for children who were not legally recognized as having two parents from birth.

Same-Sex Divorce and Federal Benefits

Since Obergefell, same-sex married couples receive federal recognition and the associated federal benefits — Social Security spousal benefits, federal tax filing as married, federal estate tax marital deduction, and immigration sponsorship rights. The ten-year Social Security eligibility rule applies to same-sex divorced spouses on the same terms as opposite-sex divorced spouses. Military benefits eligibility for former spouses of military members follows the same rules. Federal recognition means the full range of post-divorce benefit issues applies equally.

Serving LGBTQ+ Clients in Orange County and Riverside County

Furubotten Law, APC provides family law representation for all clients without regard to sexual orientation or gender identity. Call (714) 795-3862 to discuss your dissolution, domestic partnership termination, or family law matter.