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Same-sex divorce obstacles in California

While same-sex marriages are treated exactly the same as heterosexual marriages in California, the same is not quite true for same-sex divorce cases. Heterosexual marriage and divorce laws have developed over many years and intend the best outcome for both spouses and children. The same cannot be said for same-sex divorce, as the language in traditional divorce laws often don't include same-sex divorces.

In both heterosexual and same-sex relationships, couples in love typically only think about the happy years of marital bliss ahead. Unfortunately, the reality is that just as many same-sex marriages crumble as heterosexual marriages. The laws related to asset division and child custody for heterosexual couples have not been updated to cover the complex eventualities of same-sex divorce cases. In addition, there may be complicated tax and parenting issues.

Matters that may still present problems are cases where surrogacy or in vitro insemination were used to have children. Problems may arise during the divorce about legal parentage if the DNA of one spouse is absent. In any same-sex divorce that is less than amicable, one parent may lose a child because, according to current laws in some jurisdictions, he or she may have no legal claim to the child.

The only clear specifications in California same-sex laws are those that are also applicable to heterosexual couples. One of the spouses must have lived in California for six months and at least three months in the county where they plan to file for divorce. Couples who got married in California because their state does not accept same-sex marriages may file for divorce in the county where they got married. If neither one resides in California, the court may not be able to handle additional matters, such as asset division or child support. Couples may wish to gain information related to same-sex divorce laws prior to filing the case, in order to be prepared for the proceedings that may follow.

Source: The Huffington Post, "The Right to Gay Divorce", Lara Lillibridge, April 9, 2014

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Victoria S. Linder Law Office
5303 Folsom Boulevard
Sacramento, CA 95819

Phone: 916-905-4805
Fax: 916-498-0127
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