Same-Sex Family Law Explained

by | Jun 10, 2024 | Child Support, Divorce, Prenuptial/Postnuptial Agreements

Pride month may be coming to an end, but that doesn’t mean that we don’t support the LGBTQ+ Community year-round. 54 years ago, the LGBTQ+ fought back in an event now known as the Stonewall Uprising – where police raided a gay bar. This was not the first time the police raided a gay bar nor the first time the peoples of the LGBTQ+ community fought back. This event, however, began to pave the way for what LGBTQ+ activism looks like. Nearly 45 years after Stonewall, Obergefell v. Hodges was heard in the Supreme Court – which is the landmark Supreme Court Case which ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause. Because of this landmark Court Case, we are seeing more and more LGBTQ+ cases in the Family Court System. Although the Obergefell v. Hodges was heard in 2015, California made same sex marriage legal in 2013.

Only 11 years ago, same sex marriage became legal in California. This did however, pave the way for LGBTQ+ issues in the family law realm. There are a few unique issues that come to mind when handling LGBTQ+ cases that may fall within the family law scape. Below are a few select issues that can be dealt with in the family law arena that may look different from marriages or relationships of a different sex.

Prenuptial & Postnuptial Agreements:

Because of same sex marriage only becoming legal nationwide 9 years ago and in California only 11 years ago, we often see same-sex couples being in a relationship for longer periods of time prior to marriage. Because same-sex couples often find themselves marrying later in life, its reasonable to believe that finances, assets, etc. have been built up over time. This is especially true for those in a long-term relationship that predates the Supreme Court decision. All in all, because of these issues, this means there is more “on the line” to protect. I often tell people to look at a prenuptial agreement as an insurance policy for your marriage. California is a community property state, so for all couples, entering into a marriage, it is important for everyone to know that as soon as you are married and if/when you separate anything obtained during the marriage is shared between you and your partner as a “community” asset. Again, with any marriage, if married later in life, you tend to have yourself built up and more financially sound. This is not a concept only for the LGBTQ+ community, however, because of the short time between legalized same-sex marriage and now, prenuptial agreements are rather important in those marriages, to protect what you have built for yourself over time.

If this wasn’t your first thought when planning your wedding, have no fear, you can still enter into what’s called a postnuptial agreement – meaning post marriage agreement. This is similar to a prenuptial agreement in that we can still separate assets/debts/income, etc.

Parentage – Child Custody & Visitation:

Here, there is an important distinction to establish parentage and have rights to custody and visitation over any children in the relationship. If it is a same-sex female relationship and one of the parents is a biological parent, the non-biological parent MUST legally adopt the children. Without this legal adoption, the non-biological parent is at risk for full custody defaulting to the biological parent and the non-biological parent losing the relationship with their child no matter how long they have parented. The Court has done away with outdated gender roles and ideals; so, so long as the children have been adopted by both parents, the Court can make orders as to custody and visitation of the children.

Divorce & Spousal Support:

The division of assets and debts is based upon your date of separation, which is where one of the parties does not wish to continue the marriage and their actions align with final breakup behavior in the marital relationship. The date of separation severs the community and gives the Court a timeline for how long the parties were married.

One of the issues that come with the date of separation is spousal support. For long term marriages – marriages over 10+ years – spousal support is usually a long-term payment. For short term marriages – marriages under 10 years, the spousal support is generally half the length of the marriage. Spousal support is calculated based upon if one spouse has fewer resources and is dependent on the other. If a certain standard of living is created during the marriage, it is the spouse with the higher earning capacity or the “breadwinner” who is responsible for maintaining that standard for each spouse.

However, where the issues come into play with the LGBTQ+ community, is with the date of separation or the length of marriage. The Court has done away with the outdated gender roles allowing for spousal support to be ordered for either spouse, however, there was a brief period in 2008 where same-sex marriage was legal. This, however, was subject then to a ban that was passed 6 months later, with same-sex marriage not becoming legal again until 2015. If a party was married during this 6-month period where it was legal in 2008, there could be unique issues with dealing with length of marriage in the event of a divorce.