|Posted on August 24, 2011 at 12:55 AM|
Gay and Lesbian Divorce
Divorce between Gay and Lesbian couples is very similar to that of heterosexual couples with some basic differences. An outline of the Dissolution process is available on my website. If you have either registered as Domestic Partners, 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 as Domestic Partners with someone several years ago and, after a year, separated without dissolving the legal relationship. A few years later you meet someone 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.
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. Otherwise, if you do not qualify for summary Termination of your Domestic Partnership, you must go through a Dissolution proceeding (Divorce).
If you registered as Domestic Partners within the state of California, registered as some equivalent to a California Domestic Partnership (eg. Civil Union) in another state or married in another state after the passing of California Propositions 8, and you do not qualify for Summery Termination, 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 forDissolution of Marriage. There is a small group of people to whom a complication applies. That is, 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 both registered and 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 thecourts) 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 to the form the other relationship.
The Dissolution of a legal relationship includes 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, whether through litigation or by agreement of the parties, whatproperty is community (belongs to both parties) and what property is separate (belongs to only one of the parties.) 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 party 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 existenceof 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 they, in fact, are not. As with all other aspects of Family Law as well as laws pertaining specifically to the LGBT community, the law is constantly changing and I encourage the readers of this article to subscribe to my blog or follow my Facebook or Twitter feeds 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 ongoing blogs or articles.
Rivka Israel, Esq. is a local Family Law attorney and can be reached at LavenderLegal@yahoo.com, by telephone at 858- IT’S-EASY(487-3279) or on the web at FamilyLegalEase.com