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Same sex divorce in California

From Prop 22 to Prop 8, California has a bumpy road in recognizing same sex marriage, but since 2013 it's been fully legal across the state. For added distinction, a 2015 United States Supreme Court decision made it legal across the country as a whole, putting the issue to bed.

We live in a glass half empty-half full world, though. For every accomplishment comes a new hurdle. With the right to marry comes the right to divorce.

Divorce is more complex than marriage

The physical divorce is never the hard part. When two parties split a relationship, relocation is usually welcomed. It's the division of property that challenges any divorce. Cash easily splits into two separate piles, but appreciation, investments, and property gains are far more complex. Plus, in different relationships the partners have different roles. If one partner stayed home and sacrificed a career to take care of a child, that tends to be compensated in a divorce settlement.

Property gained during marriage, known as community property, is a sticky and hotly contested topic. Generally, the law recognizes property from the span of the marriage only. With California same sex marriage on a legal rollercoaster this century, it presents a unique scenario.

The rocky road of legal same sex unions

Prior to 2008 (and again until 2013 while the matter was tied up in the courts), many couples chose recognized domestic partnerships. Others, however, cohabitated but did not seek legal recognition.

A domestic partnership carries the same assurances of marriage, but cohabitation without legal certification does not. Many LGBT couples have cohabited and raised families for many years, dating back decades. That's a strong relationship but it's not a legal partnership. In the state's view, community property begins with the documentation. As an example, although it's not a same sex marriage, consider the well publicized divorce of Brad Pitt and Angelina Jolie. The famous couple lived together for the first several years of their relationship without being married. It's expected that all pre-marriage assets will remain separate holdings regardless of cohabitation and parental roles. Only the property from their years of marriage is likely to be community property.

A short history

The first U.S. same sex marriages were in 2004 and divorce law has yet to catch up to centuries of case law examples with opposite sex couples. There is less legal precedent and it confuses the legal system. A same sex divorce takes longer because of legal unfamiliarity and can cost twice as much without a specialized attorney.

Custody battles present distinct challenges as well. Many same sex couples have included a third party in their children's conception. When a lesbian couple with children divorces, the non-biological mother faces a unique legal situation.

On June 26, 2015 the Supreme Court opened the door for equal marriage rights. Civilians are celebrating the ruling, but legislative and judicial catch-up remains to make it a truly efficient system. Marriages often blossom and grow stronger, but many simply don't work. If it's time to move on, working with an attorney who knows the California family court system will get through the hurdles.

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