Same-Sex Divorce

If you’re facing a same-sex divorce in California, know that you are entitled to the same legal protections and respect as any other couple. The law recognizes all marriages and registered domestic partnerships equally.

The basics of Same-Sex Divorce in California

California is a no-fault, community property state. This system means that assets acquired during your marriage are divided equally between you and your partner based on their value on the date of separation, regardless of who purchased them. You do not need to prove fault or wrongdoing; your dignity and rights are protected throughout this process. As experienced divorce attorneys, we’re here to guide you with compassion and ensure your interests are represented at every step.

Legal Equality: California law treats same-sex marriages and registered domestic partnerships the same as heterosexual marriages when it comes to divorce. You have the same rights and responsibilities throughout the process.
Residency Requirement: Make sure that either you or your spouse has lived in California for at least six months, and in your county for at least three months, before filing for divorce.
Property Division: California is a community property state. Assets and debts acquired during the marriage are usually divided equally (50/50).
Children and Custody: Custody decisions are based on the best interest of the child (regardless of the parents' sexual orientation). If both partners are legal parents, joint custody is common. Be prepared to show your active involvement in your child's life.
Mediation or Litigation: Consider whether mediation or litigation is best for your circumstances. Mediation allows you to negotiate terms together, while litigation means a judge will decide on issues like alimony and child support. We often advise clients to try mediation first if possible.

Special Considerations

While most everything for divorces is the same regardless of the gender of the couple, there are a few things that apply specifically for queer divorce in California.

Non-Resident Option

If you were married in California but have moved to a state that does not recognize your marriage, you may still have the option to file for divorce in California. A lawyer can help you navigate this process.

Unique Challenges

If you and your spouse were together long before marriage was legally recognized, this can complicate issues like spousal support or property division. Gather all your documentation about your relationship's length and financial arrangements to help your case.

To Summarize
LGBTQIA+ Divorce in CA

Legal Equality: California law offering equal protections and rights to LGBTQIA+ couples getting a divorce.
Residency: To file for divorce in California, at least one spouse must have resided in the state for six month, in the county for three months.
Property Division: California is a community property state. It typically divides assets and debts acquired during the marriage equally (50/50).
Child Custody: Decisions are based on the best interest of the child regardless of sexual orientation. Legal parents have full rights to seek custody or visitation, and individuals with a "parent-like" bond may be considered.
Process: We encourage mediation if possible, which costs less and allows for negotiation (litigation is always still possible).

Frequently Asked Questions

You’ve got questions, we’ve got answers

Can I get spousal support in a same sex divorce?

Yes, it is possible. The same criteria for alimony (spousal support) applied to opposite-sex couples apply to same-sex couples.

Do I need a specialized LGBTQ divorce lawyer?

The LGBT divorce lawyer client relationship is important. While the law treats all divorces equally, finding an advocate who provides understanding and compassion to your situation is invaluable.

What if we are part of a throuple?

Divorces involving a throuple are particularly complex under California law. While polyamorous relationships themselves are not illegal, California family law is designed around a two-person marriage model. Legally, only marriages between two people can be recognized and dissolved by the courts, since polygamy is not permitted in California. This means that if only two members of a throuple are married, the divorce process can address the dissolution of that legal marriage, but any additional relationships or arrangements outside of that legal marriage are not covered by the divorce laws. Navigating these situations often requires creative legal strategies and a clear understanding of each person’s rights and obligations.

Are there issues if we used a sperm donor or surrogacy to have kids?

Like so many issues in family law, it depends. Generally child custody is the same regardless of how they were conceived or carried. Issues arise when children born via surrogacy or sperm/egg donors lack clear documentation of parental rights. Contact us if you want a consultation on your specific situation.

Will you represent gay/lesbian/trans clients in a divorce?

Absolutely! Your sexual orientation will be respected by our firm and we are happy to represent and support you through your divorce.

Can one parent stop legal custody of the other?

When both partners are legally recognized as parents, whether through adoption, being named on the birth certificate, acquiring a parentage judgment, or a being a child “of the marriage” parentage judgment, each has the full and equal right to seek custody or visitation. These rights exist regardless of biological connection, ensuring that every parent’s relationship with their child is respected and protected.

Does adoption impact divorce and child custody?

In California, same-sex divorce cases involving a “parent-like” relationship, such as a stepparent, non-biological, or non-adoptive parent, are handled with deep consideration for the best interests of the child. When legal parentage has not been established through birth or adoption, individuals who have formed a significant emotional, caregiving, and financial bond with the child may still pursue custody and visitation as a “presumed parent.” This approach recognizes and honors the essential role that committed caregivers play in a child’s life, ensuring their rights and responsibilities are given meaningful consideration.

Choose Our Attorneys

With deep roots in the community and extensive experience, our attorneys are committed to guiding our clients with authority and compassion. At Burgos Santoyo Smith, you get the experience of seasoned litigators with small firm attention. We believe that love is love, and that everyone is worthy of respect and consideration during a divorce.