Unless you have been living under a rock for the past month you are no doubt aware that the Obergefell v. Hodges decision guarantees same-sex couples the fundamental right to marry by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Interestingly enough, this decision now gives same sex married couples the right to legally divorce, as well as all of the other benefits that opposite sex married couples have enjoyed forever. So with respect to marital dissolution for same sex couples, how does the long coming change in law affect issues such as division of assets and or custody disputes?
At first glance, the first issue, division of assets may seem to be a perfunctory concern with respect to the long standing community property laws in California. Meaning there is no statutory cohabitation scenario that amalgamates separate assets into community property until a couple is officially married. However, that position doesn’t seem to be equitable when a couple was in a domestic relationship for say 30 years and now all of a sudden they are able to marry and then divorce and all of their assets have been intertwined for years. One would think that there could be many such scenarios given the reluctance to change the laws to permit marriage while a same-sex couple was committed to each other for a long period of time. In such a scenario, there seems to be a need for a method to equitably divide assets under the purview of the family law context that would not conflict with the community property statutes and be retroactive. Short of a new modified approach, it would seem that same-sex couples would have to rely on arduous task of tracing assets to prove their separate origins, which would clearly be difficult in large marital estates.
Secondly, and just as important, are issues regarding child custody. Typically the law regarding custody has been based on public policy perceptions of caregiver roles and biological ties when children share DNA with one or neither of the parents. Clearly both of the those traditional perceptions would have to be modified in determining custody in many same-sex marriages when children are involved.
Neither of the aforementioned issues are settled at this point, but nonetheless they are interesting to think about with respect to new dynamic of same-sex divorces.