Will California grant my Same-Sex Divorce?


Sarah B. Russo, Esq. 

Many same-sex couples who marry do not consider what will happen if they separate.  Specifically, will the state that granted your marriage recognize your divorce?  Or, will the state in which you currently reside grant your divorce if the state does not yet recognize same-sex marriage? Unfortunately, the answer to these questions in many states is no.  Most states have residency requirements to initiate divorce proceedings, and many states simply refuse to consider same-sex divorce applications.  For many couples who move, or who have traveled to a state that recognizes same-sex unions for their marriage but do not reside there, this poses a huge problem when they wish to divorce.  Fortunately, California is one state whose legislature has considered this problem.

I'm in a same-sex marriage and my state won't give me a divorce - can I file in California?

California will grant you a divorce if you have been a resident of California for more than 6 months, regardless of the sex of your spouse.  California will also consider divorce petitions from same-sex couples who are not residents of the state under certain circumstances.  Specifically, any same-sex couple who were married in California may file for a dissolution of that marriage in California if the state in which the parties reside will not dissolve their marriage.

Why is this necessary?

Many states that do not recognize same-sex marriages likewise do not grant same-sex divorces -- leaving many married couples in legal limbo.  For many of these couples remaining legally married is not a wise decision.  For example, married partners may continue to accrue an interest in the other's assets, earnings or retirement accounts; they may be called upon to make medical decisions for one another in an emergency; they may have inheritance rights with respect to their spouse's property; they may be liable for acts or omissions of the other party.  Basically, all of the rights and responsibilities of marriage remain intact until a legal proceeding is initiated.

Where should I file?

If you were married in California, and your state of residence will not dissolve your marriage, you should file in the California county where you were married.

I'm ready to file - what do I do?

You should seriously consider retaining an attorney who is experienced in this area, particularly if you live out of state.  This process can be more complicated than it appears at first glance, even if you and your spouse are in agreement (or think you are).  That being said, once you are ready to file, the first step is to prepare your Petition -- Domestic Partnership/Marriage (FL-103) and Summons (FL-110) and file the original documents with the Superior Court in the county in which you were married.  You will then arrange to have a third party or process server serve your spouse with a file endorsed copy of each form.

NOTE: Beginning January 2015, you should use the following forms in lieu of those listed above:  Petition—Marriage (form FL-100) and Response—Marriage (form FL-120).

What should I do if I need more information?

The attorneys at Russo & Prince are experienced in all manner of family lawdivorce, and same-sex divorce proceedings. Contact our office today to schedule a consultation appointment with an attorney to answer your same-sex divorce questions.


**This blog post may be considered an attorney advertisement under California Law.

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