Same-Sex Marriage Divorce and Child Custody Disputes

The landmark case Obergefell v. Hodges, decided in 2015 by the U.S. Supreme Court, granted long overdue rights to same-sex couples. These rights include the right to marry, and consequently, the right to divorce.

For same-sex couples, getting divorced in California generally follows the same process as it does for opposite-sex couples. However, there are some unique aspects to same-sex divorce in California, including determining child custody.

Determining Child Custody in Same-Sex Marriages and Divorces

In the state of California, same-sex couples are legally entitled to the same rights of opposite-sex couples in terms of child custody, family plans and visitation, and child support. Both parents can request either primary or joint custody, as well as visitation, and child support can be considered for the custodial parent.

The key difference arises when it comes to determining who the legal parents of the child(ren) are: In an opposite-sex marriage, the husband is legally assumed to be the father of any child(ren) born during the marriage. However, that legal presumption doesn’t apply to same-sex marriages.

If you and your spouse completed the process of legally establishing parentage in California, then that will be highly beneficial in simplifying your divorce proceedings. But if you (or your spouse) are not legally recognized as the mother/father of your child(ren), then the situation will need to be addressed before moving forward with matters of custody and visitation.

More Details about the Process for Same-Sex Divorce in California

In addition to arrangements for child custody, here are some of the other common issues you may face during a California same-sex divorce.

Property Distribution

Unlike a majority of states, California uses the community property approach to property distribution in divorce cases.

This means if a same sex couple was together for 20 years prior to marriage, all the property they accumulated prior to the marriage is usually considered separate, even if they commingled funds or purchased real or personal property together. This can present challenges when property is evaluated for financial statements and drafting of their marital settlement agreement.


Courts must have jurisdiction for a judge to preside on a divorce case. Jurisdiction is determined based on where the parties were married or currently reside.

If the parties are already separated and now live in different counties or states, it can present a quandary. In addition, same-sex couples face difficulty in some states because of logistical challenges. Same-sex marriage only became legal throughout the United States after the Obergefell decision.  The state that issued the civil partnership marriage license might have exclusive jurisdiction over a proceeding to dissolve that civil partnership.

Alimony (Spousal Support)

In addition, determining truly appropriate spousal support (alimony) or partnership support is also convoluted. There is limited legal precedent to guide the trial court that could truly reflect the need and duration for support resulting from the delay in allowing same-sex couples to marry. 

Although the alimony determination standard is based on several factors including financial need, education level and earning potential, the issue is that courts do not weigh time, effort, expense, education, or income level of the parties prior to when the marriage was disallowed, even if the parties had a committed relationship for decades prior to becoming legal domestic partners.

Family Code §4320(l) may be of some authority, but trial courts appear to have only looked to the duration and conduct between the legal date of the marriage and the date of separation before determining the ability for the parties to be self-sufficient after divorce. This can result in an unfair distribution of assets or disadvantages for the unemployed, under-employed, or less educated party particularly when the legal marriage had been legally prevented for a significant period of the committed relationship.

Do I Need a Prenup?

If you are just now contemplating marriage or a domestic partnership, it can be helpful to draft a prenuptial agreement prior to officially tying the knot. These contracts allow couples to expressly dictate what property is or will be community owned, what constitutes an interspousal gift or how joint accounts will be handled.

Postnuptial agreements can also be drafted to contain unambiguously, express declarations that the parties agree to change their community property to one spouse’s separate property or back and forth. 

If you have neither a postnuptial or prenuptial agreement and are prepared to file for separation, it is crucial you contact a law firm familiar with LGBTQ divorce and family law. Our firm understands the myriad of obstacles to overcome when determining how to equitably distribute and value property in a divorce and is ready to meet the challenge of assisting same-sex couples seeking marriage dissolution.

Partner with Sacramento’s Same-Sex Divorce Lawyers Today

Numerous family law firms have very little experience with LGBTQ rights and the unique issues LGBTQ families face during divorce. The divorce attorneys at Hughes Law Group focus on family law for all families, including same-sex couples. We provide representation and advice with divorce, annulment, child custody, and child support orders in Sacramento and the surrounding region.

There are many hurdles to overcome when considering divorce, and especially so for same-sex couples. If you are facing divorce and need assistance with filing a Petition for Dissolution of Marriage, Dissolution of Domestic Partnership, a marital settlement agreement or a parenting plan, contact our Sacramento divorce attorneys. We are dedicated to helping our clients seek resolution in an amicable and respectful manner.

Call today or schedule a free consultation to discuss your options.