Various marriage and divorce laws have been changing for years, especially in response to the legalization of same-sex marriages. Among these changes are the residency requirements for LGBT divorce in California.
The landmark Supreme Court ruling of 2015, Obergefell v. Hodges, made the legality of same-sex marriage an official U.S. right across all 50 states. With more same-sex couples getting married since the 2015 ruling, it also means that there is an increase in how many of these couples end up divorcing, just like their heterosexual peers.
As with any legal procedure, there are certain requirements that must be kept in mind for same-sex couples who want to divorce. One of the most important of these is the residency requirements. By better understanding what living arrangement details can allow for a legal divorce, same-sex couples in California who are looking to move on from one another can prepare for their divorce.
For a divorce to be valid in California, at least one of the parting spouses needs to have lived in the state for at least six months. In addition to this, that individual also must have lived at least three months within one specific county. There is no room for negotiation. This is the bare minimum requirement in California to file for divorce, even for same-sex couples.
However, if you are divorcing for a severe reason, such as domestic violence, there is no requirement for the two individuals to live together. The alleged victim, in this case, has full rights to remove themselves from the household and pursue a restraining order while the individuals wait to be eligible for divorce.
The point of these residency requirements is to ensure fairness and authenticity in divorce. These residency benchmarks are to discourage anyone from participating in “divorce venue shopping.” This is a term that describes when two individuals scout different jurisdictions to see which has the most advantageous divorce laws they can benefit from.
If every couple was allowed to move to a new state to quickly divorce and then return to where they want to live, it could undermine the stability and integrity of the entire legal system. Setting these clear residency expectations ensures that the courts are making decisions on behalf of two individuals who have genuine connections to the community and are not taking time away from other couples who are just trying to cheat the system.
California is a community property state, which means that all assets and debts that have been collected during the marriage are considered ‘community property’ and must be divided equally during divorce. This principle applies no matter whose actual name is on an asset’s title or who specifically earned the income.
The only connection between a residency requirement and property division is that the longer you have been married in California, the more potential there is for more assets to be split upon divorce.
For any couple who recently moved to California but has a ton of assets that were collected elsewhere, the property division aspect of divorce could become more challenging. These assets could be viewed differently, depending on the property laws of the state or country the individuals lived in previously. Hiring a divorce attorney who is familiar with how laws differ among jurisdictions is the simplest way to ensure that your same-sex divorce is swift and compliant.
A: A myth about the 10-year marriage rule in California is that marriages need to last for a full decade before a couple is able to split. This is not true. Rather, it is a guideline that will officially classify a marriage as “long-term” if it has reached the 10-year milestone.
This can be significant, as it has implications for divorce items, such as how much an alimony payment will be. The 10-year rule exists because California recognizes that both individuals have become accustomed to a certain lifestyle after 10 years, and the court will try to preserve that after their divorce. This rule applies to all couples, including those who are of the same sex.
A: If a same-sex couple is interested in a legal separation rather than a divorce, there are no specific residency requirements. This allows the same-sex couple to file for legal separation immediately, no matter how long they have been in California.
The option of legal separation is compelling for those who are waiting to become eligible for divorce. It also appeals to those who want to be separated but don’t want to officially end their marriage for different personal, financial, or religious reasons.
A: Yes, you are still welcome to get a California divorce even when the other person is unwilling to sign. Anyone who receives divorce papers in California has 30 days to fill out the paperwork and respond.
If they have missed this deadline and indicated that they have no intention to oblige, the filing spouse can request a default judgment from the court. This means that the divorce is able to proceed without the participation of the uncooperative spouse. Additionally, the court is empowered to make all the important decisions in a divorce, such as property division, child custody, and more.
A: The rules for splitting a house in a divorce are the same for both same-sex and opposite-sex couples. The state will enforce its community property laws to see if the house was acquired before or during the marriage.
If the house was purchased during the marriage, it will generally be split between both parties. This could mean that both parties agree to sell the home and split the profits, or one individual remains in the home while the other is compensated for moving on. However, any prenuptial agreements or special accommodations to enforce the most appropriate child custody arrangement could change what traditionally would happen.
If you are part of a same-sex couple in California and need support, contact the Law Offices of Michelanne Hrubic today. For years, we have navigated the newer landscape for same-sex couples looking to divorce, and we would be honored to help ensure that your family unit and assets are taken care of as you and your ex-partner move on.
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