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Legal Ease: Gay and lesbian divorce

Divorce between gay and lesbian couples is very similar to that of heterosexual couples, with some basic differences.

The biggest similarity is whether you have either registered as domestic partners, gotten married, or done both, you must legally terminate that relationship. You can’t just walk away.

A legally recognized relationship carries with it certain rights and responsibilities which continue until the relationship is legally terminated.

Furthermore, if such a relationship is not terminated, you cannot legally enter into another such relationship.

Let me give you an example.

Let’s say you were registered the domestic partner of someone several years ago, and after a year, separated from that person without dissolving the legal relationship. A few years later, you meet someone else and marry them in another state.

Now, all rights and responsibilities acquired through the new marriage will not apply -- because the marriage is invalid -- as you were already in a legally recognized relationship at the time you attempted to enter into a new one. This comes into play when a couple has purchased property together, had children together, and if the couple later divorces and one seeks spousal support.

Without a legally valid relationship, none of these rights will apply.

However, with a legally valid relationship in place, rights and responsibilities do apply and must be ended in a legal fashion. Depending upon your specific situation, one of the following scenarios would apply to the legal end of your relationship:

  • If you registered as domestic partners within the state of California and you have been together less than five years, have no children or property and limited debt, you may be able to terminate the domestic partnership as long as neither party is asking for spousal support and both parties are in agreement. A "Notice of Termination of a Domestic Partnership" is filed with the California Secretary of State, not with the Court.
  • If you registered as domestic partners within the state of California, registered as some equivalent to a California Domestic Partnership (e.g., Civil Union) in another state, or married in another state after the passing of California Proposition 8, and you do not qualify for Summary Termination as oulined above, you will have to file a "Petition for Dissolution of Domestic Partnership."
  • If you married before the passing of Proposition 8, whether in California or in another state, you will have to file a "Petition for Dissolution of Marriage."
  • There is a small group of people to whom a complication applies: Those who registered as Domestic Partners, or its equivalent in another state, and who then married before the passing of California’s Proposition 8, must dissolve both relationships. All petitions for dissolution, whether of domestic partnership or marriage, are filed in the Family Court.

Prior to January 1, 2011, couples who registered as domestic patners and also got married, were required to file separate petitions for dissolution of their relationships; one for the marriage and one for the domestic partnership. This required payment of two filing fees; one for each petition. However, this situation was corrected and as of January 1, 2011, such a couple may petition for the dissolution of both legal relationships in one petition.

Since the Judicial Counsel (who is tasked with preparing official forms for the courts) has not yet prepared a form that includes both legal actions on one form, a party seeking to dissolve both relationships should use the form associated with the longer relationship and add the other relationship to the form.

The dissolution of a legal relationship includes a division of property and debts, custody and visitation of children, as well as a request for support (child or spousal). A court of law will have to determine -- through litigation or by agreement of the parties -- what property is community (belonging to both parties) and what property is separate.

The court then divides the property or assigns or confirms it to the party to which it belongs. Each party has a duty (legal requirement) to disclose all relevant financial information to the other part,y as well as a fiduciary duty (responsibility) to the other. This is taken very seriously by the courts and a court can decline to grant a divorce if the parties have not exchanged their financial information.

It is somewhat complicated to navigate through the dissolution process without assistance. Many couples try to complete the process on their own only to encounter problems.

A divorce does not have to be adversarial, nor does it have to be complicated or expensive. It does, however, have to be done properly. There are many aspects of a divorce that are handled differently for same-sex couples than for heterosexual couples, due for the most part, to the existence of DOMA.

Therefore, it would be prudent for same-sex couples to consult with a Family Law attorney who is knowledgeable regarding the special applications of the law to same-sex couples. Be careful though. Some attorneys claim to be knowledgeable in this area, when in fact, they are not.

You can find forms for entering into or terminating a domestic partnership HERE. An outline of the divorce and the dissolution process is available on my website.

This area of the law is constantly changing and I encourage the readers of this article to subscribe to my Family Legal Ease blog or follow my Facebook page or my Twitter feed to stay up to date on those changes.

I also encourage readers to submit questions and/or suggestions for article subjects to me and I will try to address those issues in upcoming blogs or articles.

Rivka Israel, Esq. is a local Family and LGBT Family Law attorney who spent her undergrad years at Bar Ilan University, received her JD from California Western School of Law and was admitted to the California State Bar in 2000. She is active in the community, a member of the GSDBA and writes articles for various local LGBT media. For more information about Rivka or her practice, call (858) ITS-EASY (487-3279), visit her Family Legal Ease website or contact her via email, at lavenderlegal@yahoo.com.