What Are the Legal Considerations for Same-Sex Divorce in California?

Same-sex marriage has been legally recognized in California since 2013, and since the landmark Obergefell v. Hodges ruling in 2015, same-sex marriage has been recognized nationwide. While legal equality is now the standard, same-sex couples still face unique legal and emotional complexities when going through a divorce.

At Enright Family Law, we understand that the modern family looks different for everyone. We work with LGBTQ+ individuals and couples to provide compassionate, forward-thinking representation that aligns with today’s evolving definitions of family and partnership. If you are considering or facing a same-sex divorce in California, it’s important to understand your rights—and the specific legal considerations that may impact your case.

Same-Sex Divorce: The Legal Basics

Same-sex divorce in California generally follows the same procedures as any other divorce. California is a no-fault divorce state, which means that one party does not need to prove wrongdoing to initiate a divorce. Simply citing “irreconcilable differences” is sufficient.

The basic issues involved in a same-sex divorce include:

• Division of property and debts
• Child custody and visitation (if applicable)
• Child support
• Spousal support (alimony)

However, while the legal framework is the same, same-sex couples may face distinct issues—especially related to parentage, asset division, and the legal history of their relationship.

1. Property Division and Length of Marriage

In California, community property is divided equally between spouses. Community property typically includes all income and assets acquired during the marriage, while separate property includes anything acquired before marriage, after separation, or via gift/inheritance.

Many same-sex couples were in long-term committed relationships before they were legally allowed to marry. Assets acquired during that pre-marital period may not be considered community property, even though they were acquired during a committed, marriage-like relationship.

For example, if a couple bought a home together in 2008 but didn’t legally marry until 2015, the court may consider that home as separate property unless steps were taken to legally combine ownership.

Couples in this situation may need to explore options such as:

• Marvin claims (contracts or agreements between unmarried partners)
• Transmutation agreements (to change separate property into community property)
• Tracing methods (to determine how an asset was acquired and by whom)

2. Child Custody and Parentage Issues

For same-sex couples with children, parentage—not just custody—can be a significant issue. In many heterosexual divorces, both spouses are assumed to be the legal parents of the children. In same-sex divorces, this may not be as clear-cut.

Legal parentage matters because only legal parents can seek custody or be ordered to pay support.

Scenarios to consider include:

• One parent being the biological parent and the other not having legally adopted the child
• Children born via surrogacy or sperm/egg donors without clear documentation of parental rights
• The couple raising a child together from a previous relationship, but only one has legal custody

Without formal adoption or a legal parentage judgment, the non-biological or non-adoptive parent may have no parental rights—even if they’ve been acting as a parent for years. Establishing legal parentage early on is crucial in LGBTQ+ families.

3. Spousal Support and Duration of Relationship

In determining spousal support (alimony), courts often consider the length of the marriage. The longer the marriage, the more likely long-term or permanent support may be awarded.

As with property division, same-sex couples may face challenges when a significant portion of their relationship predates their legal marriage. Courts are generally bound to consider the legal date of marriage, not how long the couple lived as partners. However, in some cases, judges may exercise discretion and consider the entire length of the committed relationship when setting spousal support.

To improve your chances of fair treatment, it is helpful to present evidence of your shared life prior to the marriage—such as cohabitation, joint finances, co-parenting, or domestic partnership registration.

4. Jurisdiction and Recognition of Out-of-State Marriages

If you were married in another state before same-sex marriage was legal in California, you may wonder whether California recognizes that marriage for the purpose of divorce. The answer is yes—California recognizes valid same-sex marriages from other jurisdictions.

Additionally, if you were legally married in California but now live in a state that does not recognize same-sex marriage, you can still file for divorce in California, even if neither of you currently lives in the state—provided you were married in California and no other state will dissolve your marriage.

This rule exists to protect same-sex couples who find themselves in legal limbo.

5. Emotional and Social Considerations

Same-sex divorce may also bring emotional complexities that differ from traditional divorces. Social support networks may be less equipped to handle the nuances of an LGBTQ+ separation. Additionally, individuals may be dealing with identity questions, family rejection, or community stigma—on top of the normal emotional weight of a divorce.

This is why working with a law firm that understands and supports the LGBTQ+ experience is so important.

How We Can Help

At Enright Family Law, we believe that every family deserves strong, respectful legal representation—no matter how that family is defined. We understand that same-sex divorce is not just a legal issue, but also a personal one that can carry unique emotional and logistical challenges.

We provide thoughtful, inclusive, and experienced legal services for LGBTQ+ clients in San Diego and beyond. From establishing parentage to resolving disputes over long-term assets, we are here to ensure your rights are protected and your voice is heard.

If you're navigating a same-sex divorce—or even considering one—contact us today for a confidential consultation. Our goal is to help modern families move forward with dignity, fairness, and clarity.