As of the end of June, same-sex marriage has been legal nationwide for five years. This landmark legal decision in 2015 changed millions of lives. Suddenly, couples could get married and start families with legal recognition. A whole world of legal benefits opened up to same-sex couples in one fell swoop.
However, not every relationship is meant to last, regardless of the genders involved in the marriage. As a result, same-sex marriage has led to new complications for some: namely, same-sex divorce. But that’s not all. There are some unique problems involved in same-sex family law cases, especially in California.
Domestic Partnerships and Marriages
California was one of the first states to make arrangements for same-sex couples to be legally united. The original method, first put into place in 1999, was a domestic partnership . While this gave same-sex couples many of the same rights as marriage, it was not a complete solution. Nevertheless, as it was the only option, many same-sex couples registered as domestic partners.
When same-sex marriage was legalized nationally, many of these couples were eager to take advantage of it. Nothing in the domestic partnership requirements prevents domestic partners from also being married to each other. As a result, there are many couples who are both legally married and registered domestic partners .
This poses some problems should these couples decide to get divorced. While it is possible to dissolve both a marriage and a domestic partnership at once, it is more involved than just divorcing or just ending a partnership. The California court system specifically recommends consulting with an attorney to make sure that both former partners receive fair treatment and accurate information.
The fundamental process of divorce is the same whether the marriage is heterosexual or not. However, same-sex marriage has only been legal for five years – many same-sex relationships had been going on for years or decades before 2015. That makes a fair divorce more difficult.
If two people have been in a cohabitating relationship for 20 years, but only married for five, there is a legal gray area when it comes to divorce. The difference between marital assets and pre-existing assets is fuzzy, since the former partners have been together so long.
Similarly, long-term relationships that are only now coming to an end are seeing difficulties in alimony decisions. Most judges use their discretion to award alimony to the lower-earning partner in longer relationships. However, when a significant part of the relationship occurred before the couple could legally marry, the judge may or may not take that extra time into account.
As a result, many same-sex couples in San Francisco may find that their finances become much trickier if they get divorced. Maintaining a certain standard of living might become much harder if the lower earner doesn’t receive fair spousal support. On the other hand, the higher earner may find themselves losing a significant portion of their assets depending on when the judge decides that assets became “marital.”
Same-Sex Child Custody
California has had a longer history than most states of same-sex adoption being legal. In 2003, same-sex adoption was legalized in California, allowing domestic partners to adopt step children or adopt jointly. As a result, there are more legal children of same-sex couples in California than in nearly any other state.
Just because same-sex adoption became legal in 2003 doesn’t mean all the kinks had been worked out. Even today, new complications arise when same-sex parents divorce. The adoption of step children or even joint custody adoptions can both lead to difficult legal situations when custody is contested.
For example, if one parent adopted their partner’s biological child, they are both considered equal parents under the law . However, judges are legally allowed use their discrimination to award custody to the biological parent instead of the adoptive parent, regardless of the adoptive parent’s wishes. This can also seriously impact child support payments and tax burdens for both parents.
Who Owns Embryos
There’s one final complication. Many same-sex couples use in vitro fertilization to have children. California dictates that people in a same-sex relationship are both automatically considered parents of a child conceived through in vitro fertilization, regardless of who carries the baby. This law, AB960, helps protect legal parents regardless of gender, but it is not a foolproof solution for all situations..
If a couple is in the process of artificial insemination or another fertility treatment when they choose to divorce, then there are likely frozen embryos being stored for them. Legally, if these embryos were implanted and brought to term, both former partners would have been considered the child’s legal parents. The question is this: who owns these embryos before they’re implanted
It’s likely that at least one of the partners has contributed their genetic material, but not both. It seems straightforward that the biological parent has ownership of the embryos. However, non-biological parents have argued that they also have ownership over these embryos. Since they helped in the creation of the embryos legally and financially, it can be argued they also have a stake in them.
When both parties agree on what should happen to their frozen embryos, there are no problems. However, if one person wants to destroy them but the other wants to implant them, things become difficult. If the non-biological parent wants to keep them, what should happen? Is it a violation of the biological parent’s rights? Five years after the legalization of gay marriage, there are still court cases setting precedent for this type of problem.
The national legalization of same-sex marriage was undoubtably a huge civil rights win. San Francisco residents received confirmation of their right to marry throughout the country. However, five years is not a long time in the legal landscape. There are still difficult situations stemming from this legal decision.
Navigating the legal system to end a same-sex marriage is complicated. Whether there are questions about child custody or difficult asset divisions, no divorce is ever easy. Getting help navigating the legal system is always the right choice, no matter who’s getting divorced.