Challenges ahead for those seeking to end a California same-sex marriage


Thanks to a landmark decision earlier this summer by the United States Supreme Court, the controversial California law known as "Prop 8" has been struck down, making same-sex marriage once again legal in the "Golden State." Marriage licenses were issued by several California counties within days of the ruling, and many same-sex couples (state residents and visitors alike), have triumphantly walked down the aisle.

Separate but equal?

While gay and lesbian couples now have the ability to marry - instead of just entering into a civil union or domestic partnership - this does not necessarily mean that all married couples are treated the same under the law. Same-sex marriage is, legally speaking, in its infancy. Though it is now permissible for gay or lesbian couples to marry, many of the state's statutes - particularly those governing family law and estate administration/testacy - will need significant updates before all marriages can truly be considered "equal."

Unique issues

For example, the majority of the state's family laws, and those in many other states, are gender-specific instead of gender-neutral, meaning that instead of saying generic terms like "spouse" or "party to the marriage," they explicitly refer to the parties as "husband" and "wife." At first blush, this seems like a small distinction, but it is quite important.

A same-sex marriage doesn't have the traditional "husband" and "wife" roles, so some judges may find it difficult to find apply those designations to same-sex partners when the parties decide to divorce. One judge may decide to take the liberty of treating both spouses as a "husband" for purposes of making decisions in a particular case. Because of the dated language in the statutes, this small decision can have ramifications when it comes to property settlement, child custody and spousal support.

A different judge - even a judge in the same county or judicial circuit - could instead choose to treat both parties as a "wife" or to specifically assign the "husband" role liberally discussed in the state's family laws to one party in a case and designate the other party the "wife." Those decisions also come with their own consequences.

This is not to mention the decades of precedential court decisions that have shaped the way that family law judges around the state handle heterosexual divorce-related issues. Few California family courts have handled same-sex divorces, so there are far less applicable case law resources available. As it stands now, same-sex divorces take much longer and usually cost much more than "traditional" divorces as couples, attorneys and judges make their way through the process.

Getting help

Do you have questions about same-sex divorce? Would you like more information about the unique issues that should be considered before a same-sex marriage like premarital agreements or a non-biological parent adopting their partner's biological child? For answers to these and other questions you have, consult an experienced California family law attorney in your area.