Same Sex Couples
On November 6, 2008 California voters passed Proposition 8. Prop 8 adds the following language to the California Constitution: "Only marriage between a man and a woman is valid or recognized in California." Prop 8 was a response to the In re Marriage cases. Its effect is to overturn the recognition of same sex marriages. At this point in time there is no longer a right for same sex couples to marry in California. The permanent consequences of the new Constitutional language will have to be clarified by the California Supreme Court.
California's Domestic Partnership Law
The ruling also had the effect of extending all of California's family code provisions and divorce processes to same sex married couples. Termination of the same sex marriage is accomplished through the same judicial process as is used to dissolve opposite sex marriages. The court will divide all community property. The court will resolves issues of child custody and visitation. Like any "married' couple, the lesser-earning spouse is eligible for post-separation spousal support as determined by the family law court judge, based on statutory factors. Likewise the family law judge will apply California's statutory child support guidelines and impose child support orders when appropriate. Please see the balance of our website's family law sections for more information on these substantive areas of California divorce law.
None of the federal tax benefits and burdens that apply to male/female married couples will apply to same sex married couples. At this point in time, there is no Federal recognition of same sex marriages.
On November 6, 2008 California voters passed Proposition 8. Prop 8 adds the following language to the California Constitution: "Only marriage between a man and a woman is valid or recognized in California." Prop 8 was a response to the In re Marriage cases. Its effect is to overturn the recognition of same sex marriages. At this point in time there is no longer a right for same sex couples to marry in California. The permanent consequences of the new Constitutional language will have to be clarified by the California Supreme Court. The California Supreme Court will also have to determine if the approximately 17,000 same sex marriages that took place between the issuance of the In re Marriage Cases and the passage of Prop 8.
In the mean time it appears that same sex couples must return to utlizing the domestic partnership registration process to formalize their relationships.
California's Domestic Partnership Law
All of California's family law rules apply to state-registered domestic partners (including same sex couples who registered in the days before In re Marriage Cases, and opposite sex couples over the age of 62). All income and all assets and savings acquired after registration, and all assets accumulated from earned income are presumed to be equally owned community property, regardless of titling of deed, asset, or account. The rules of community property also apply to savings accounts, stock options and accounts, real property acquired, businesses developed, and IRA/pension benefits.
The most significant effect of California’s domestic partnership law is that terminating of the domestic partnership is accomplished through the same judicial process as is used to dissolve marriages (i.e., the domestic partners must get divorced in court). The court will divide all community property. The court will resolves issues of child custody and visitation. Like any "married’ couple, the lesser-earning domestic partner is eligible for post-separation spousal support as determined by the family law court judge, based on statutory factors. Likewise the family law judge will apply California’s statutory child support guidelines and impose child support orders when appropriate. Please see the balance of our website’s family law sections for more information on these substantive areas of California divorce law.
It is important to note that when it comes to divorce, California’s domestic partnership law is not without certain problems.
- • All duties/benefits are retroactive to the couple's registration date rather than January 2005. This retroactivity raises Constitutional due process questions that will need to be resolved by future court decisions.
- • None of the federal tax benefits and burdens that apply to married couples will apply to domestic partners. California’s domestic partnership law applies only within California. There is no Federal recognition of the California law.
Summary of laws that affect gay, lesbian, bisexual and transgender people in California.
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