Same Sex Marriages & Domestic Partnerships in California
Are you and your partner splitting up from a same-sex relationship? Like any split, there are significant emotional challenges. The laws in this area are still evolving and can be complicated. Are you and your domestic partner struggling to divide assets? Is there a dispute over support or child custody? Do you wonder whether you have all the same rights as an opposite-sex couple? Whether you are in a domestic partnership or a same sex marriage, you have significant rights! Some issues are governed by California family law and others by California contract and civil law. Brown & Charbonneau, LLP’s experienced same sex partner attorneys (divorce and business lawyers) can help you with all of these issues. Call us today at 714 505-3000 to find out how we can help you get through this difficult and emotional period in your life.
Our top rated divorce and business lawyers can help you in the below areas. For a historical of this ever evolving area of law, see below discussions.
- Division of assets (real estate, cars, retirement benefits, etc.)
- Partner support
- Breach of fiduciary duty
- Domestic abuse & restraining orders
- Child support
- “Marvin” claims
- Modifications of existing orders
- Registering Domestic Partnerships
- Mediation & dispute resolution services
Divorces for Same-Sex Marriages and Domestic Partnerships
Same-sex marriages and domestic partnership have most of the same rights and obligations as opposite-sex marriages, including the right to end such marriages and domestic partnerships. For the most part, the process of ending a same-sex marriage is identical to the process of ending an opposite-sex marriage.
Special Rules Applicable to Same-Sex Marriage or Domestic Partnership?
California has special rules surrounding the dissolution of same-sex marriages and domestic partnerships. Opposite-sex married persons wanting to get a divorce in California must satisfy a residency requirement, but this residency requirement does not apply to same-sex couples. This means that same-sex couples who got married or registered as domestic partners in California, but live in another state that will not dissolve the same-sex marriage, can still end their relationship by filing in California. However, if you and your partner do not live in California, a court may not be able to adjudicate issues like property, debt, support, or custody. This is where the help of an experienced lawyer is essential.
How Are Assets Divided at the End of a Same-Sex Relationship?
When a divorce or split occurs, it is preferable for the couple to negotiate the terms of a divorce settlement outside of court with the help of their lawyers, a mediator, or a collaborative divorce coach. If a divorce settlement cannot be reached, you need a lawyer to make the most compelling arguments possible to persuade the judge to rule in your favor on the terms of your divorce. This is especially true in the dissolution of same-sex relationships, where the law is constantly changing.
Generally, the way assets are divided in a same-sex relationship depends on the nature of the relationship. Where same-sex partners are ending a marriage, the outcome will be determined the same way that an opposite-sex divorce would.
Where same-sex partners are ending a domestic partnership, the outcome is usually defined by the original domestic partnership agreement. However, as federal laws do not recognize domestic partnerships, any property settlement, alimony, or child support you pay or receive may be taxable without the deductions or exemptions afforded to former spouses.
Where same-sex partners are ending a relationship that was never legally established as a marriage or domestic partnership, or where the domestic partnership agreement is silent on how assets are to be divided, the outcome will usually be determined through a contracts law claim, or loosely referred to as a “Marvin Claim.”
What is a Marvin v. Marvin Claim?
A Marvin (based upon the famous 1976 Marvin v. Marvin case) claim occurs where one member of a non-marital couple wishes to receive support payments or property from a partner after a break-up based on an express or implied agreement between them. This support, sometimes called “palimony,” must be established through a written, oral, or implied agreement and is essentially a contract claim. The fact that one partner supported the other or gave up career opportunities to provide support will usually not be enough to establish an agreement.
In the absence of an agreement, the court will presume that there will be no post-separation support, that each partner separately owns the assets and debts they accumulated during the relationship, and that joint accounts or assets held in both names are owned equally. However, even if a party cannot establish the presence of an agreement, they may have a claim under quantum meruit (Latin for “what one has earned”) for the value of the services they rendered to the former partner.
Marvin Claims are complex and require attorneys knowledgeable in both contracts and family law. If you are seeking support payments from a former partner, or a former partner is seeking support from you, call Brown & Charbonneau, LLP to speak with an expert.
How is Child Custody Handled After a Same-Sex Divorce?
Where both same-sex partners have equal parental status towards a child, child-related disputes are typically handled the same way as an opposite-sex divorce. However, difficult issues arise when the partners have children, but only one of them is a legal parent. In same-sex families where the parents are not married or domestic partners, the partner that is not a legal parent will usually have no rights or obligations as to the child if they do not act to defend the relationship. In this situation, it is imperative for partners to negotiate and establish agreements on how the responsibilities of raising the child will be divided. Brown & Charbonneau, LLP can help you negotiate with your partner and protect your relationship with your children.
Same-Sex Marriage is Legal Now in California
After court rulings in both the California Supreme Court and the Supreme Court of the United States, same-sex couples have the right to marry under California’s constitution. Same-sex spouses generally have the same rights, protections, benefits, and duties as married opposite-sex couples, including tax benefits, hospital visitation rights, inheritance rights, and spousal testimonial privilege, among others. The advent of same-sex marriages presents new issues about an old institution, and navigating this area of law requires an experienced and knowledgeable attorney. Brown & Charbonneau, LLP can help.
What are Domestic Partnerships?
A domestic partnership, or “civil union” as it is called in some jurisdictions, is an alternative to marriage available in certain states that creates an inter-personal relationship between two individuals and bequeaths a range of rights and responsibilities. California was one of the first states to permit domestic partnerships. Each state has its own definition of what qualifies as a domestic partnership and what rights and responsibilities inhere to the relationship, but California recognizes any domestic partnerships or civil unions created in other states that use a substantially-similar legal definition as it.
What Rights Do Domestic Partners Have?
Under California state law, domestic partnerships are granted generally the same rights, protections, benefits, and duties as married spouses. However, federal law does not recognize domestic partnerships. This means that domestic partners may not, for example, collect Social Security benefits from their deceased partners. Federal law does recognize same-sex marriages, which are legal in California. It is also possible for a couple to be both married and in a registered domestic partnership.
How Do I Register for a Domestic Partnership?
Two people that have been living together as domestic partners and who meet the criteria for domestic partnerships may file a Declaration of Domestic Partnership with the California Secretary of State to become domestic partners. To be eligible for domestic-partnership status in California, a couple must meet all of the following requirements:
- Neither partner is currently married or a domestic partner to someone else
- Partners are not related by blood in a way that would prevent marriage under California law
- Partners are 18 years old or older, unless under-aged partner has written consent of parent or guardian
- Partners are of the same sex (though certain opposite-sex couples may qualify where one or both partners is above 62 years of age), and
- Both persons are capable of consenting to the domestic partnership
If you need help creating or dissolving a domestic partnership, contact an attorney at Brown & Charbonneau, LLP.
How are Common-Law Marriages Treated in California?
Common-law marriage is a legal relationship permitted in a limited number of jurisdictions where a couple is considered legally married without having formally registered as such. Typically, it is 7 years although the standards vary from state to state.
The state of California has abolished common-law marriages. However, California recognizes the validity of common-law marriages lawfully created in other states. This means that, if you and your partner lived in a state that allowed common-law marriages for same-sex couples and you qualified for a common-law marriage while you were there, you will retain all of your common-law marriage rights, such as those relating to the division of property rights, upon moving to California.
If you need assistance with any area of California Law, contact the experts at Brown & Charbonneau, LLP for a consultation: 714-505-3000