In 2015, the U.S. Supreme Court issued its landmark decision in Obergefell v. Hodges, ruling that the right to marry is guaranteed to same-sex couples by the U.S. Constitution. Before the Obergefell decision, California was only the second U.S. state to allow same-sex marriage. In addition to having the right to marry in the state, California same-sex couples also had the option of entering into a domestic partnership. Today, the terms domestic partnership and same-sex marriage are still used in California. While both describe a legal relationship, there are some key differences between the two. California domestic partnership and same-sex marriage: Are they the same? Continue reading
The United States Supreme Court upheld California’s decision to allow same-sex marriages in 2013. In another case heard two years later, a Supreme Court decision prevented states from banning same-sex marriage. But even so, these decisions did not iron out all of the legal wrinkles faced by gay couples. For example, spouses sometimes found they were not their child’s legal parent unless they went through a formal adoption. One reason for this is that it was difficult, if not impossible, to have a birth certificate with two moms or two dads. Continue reading
On the eve of their third anniversary, Dwight and Angelo decided their domestic partnership just wasn’t working anymore. They both worried that terminating their relationship could be expensive and stressful. But they also felt it was the right thing to do and hoped to move quickly. They began to explore their options. It looked like the easiest way to dissolve their domestic partnership might be through something called summary dissolution. Continue reading
Children need their parents, even after a divorce. That’s why California courts focus so much on doing what is in the child’s best interest when deciding on child support and visitation issues. Another important and basic issue that pops up in many divorces involving children – parental rights. It’s not always an easy situation for the parents or their children. With the rise of legal same-sex marriages, establishing parental rights became a little more challenging for some couples.
Opposite-Sex Couples and Parenthood
Before same-sex marriage became legal, establishing parental rights usually meant proving the father’s identity. This step is usually easy for married couples because the law generally assumes that the mother’s husband is the baby’s father. When there is uncertainty, however, an opposite-sex couple can establish fatherhood through:
- Signing a Voluntary Acknowledgment of Paternity,
- Obtaining a court order.
In the past, same-sex parents sometimes found it difficult for both partners to be accepted as a child’s legal parent.
California Law and Presumed Parents
Generally, one spouse is presumably the parent of the other spouse’s child under the following conditions:
- He or she was married to the child’s mother when the child was conceived or born.
- The presumed parent attempted to marry the child’s mother or was engaged in a marriage later deemed invalid when the child was conceived or born.
- They married the mom after the child was born and agreed to be added to the birth certificate or to support the mom’s child.
- One spouse treats the other spouse’s child as his or her child.
These legal presumptions apply to all married couples and people who registered a domestic partnership after January 2005. Couples in same-sex marriages have the same right to be a presumed parent under the conditions mentioned above.
Potential Roadblocks to Establishing Parental Rights
In marriages where the spouses are of the same sex, they might become parents through:
- In vitro fertilization,
- Using a surrogate mother, or
In the past, the spouse that gave birth to a child was considered the child’s parent. The same-sex partner did not automatically get parental rights. Instead, they would have to adopt the child their partner gave birth to, even though they acted as the child’s parent. Without the right legal framework, partners could be denied access, visitation, or custody to the child they had raised from birth.
Using the assumptions that California law allows, it would appear that same-sex couples would both have parental rights, regardless of the biological origin of their children or whether one gives birth. However, other states and countries may not recognize parenthood given the same set of circumstances. It may be best to err on the side of caution. After all, you want to make sure your parent-child bond stands up in court if necessary.
Call to Learn More About Establishing Parental Rights in a Same-Sex Marriage.
Establishing parental rights is best done well before a breakup. Most people can save time, money, and some serious angst by ensuring both halves of a same-sex marriage are considered parents of any children born during the marriage.
The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce, legal separation, and annulment. Call us at 415-293-8314 to schedule a private appointment or visit our website. We assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.
One day, Luisa received an announcement that her friends, Donnie and Melissa, had decided to register their domestic partnership. As Luisa celebrated with her friends, she was a little puzzled. She and most of her friends thought that California registered domestic partnerships were only for same-sex couples.
History of California Registered Domestic Partnerships
Until 1999, same-sex couples really did not have the same rights and benefits that opposite-sex couples enjoyed. However, California enacted a law that allowed gay couples to register as a California domestic partnership. Doing so meant that the parties:
“have same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law …”
After the U.S. Supreme Court’s decision in Obergefell v. Hodges in 2013, same-sex marriages were legal in all 50 states. California began recognizing both same-sex marriage and domestic partnerships. However, registration was limited to same-sex couples and opposite-sex couples where at least one partner was over 62.
Then, in 2019, the California Domestic Partner Rights and Responsibilities Act of 2003 was amended. Now, California registered domestic partnerships are available to all couples over the age of 18, regardless of sexual orientation.
Qualifying for Registration
California law defines domestic partners as: “two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” However, it takes more than love to qualify for a California registered domestic partnership. There are still legal requirements to meet when registering, including:
- Neither person is married or part of a current domestic relationship;
- The parties to the partnership are not related by blood in any way that prevents them from marrying under California law;
- Both parties are over age 18 (although there are exceptions); and
- Both parties are capable of consenting to the registered domestic partnership.
Previously, opposite-sex couples were prohibited from being recognized as California registered domestic partnerships. However, the new law allowing them to register took effect on January 1, 2020.
California Registered Domestic Partnerships for Couples
Sometimes couples do not want to go through with a traditional wedding or be considered a married couple. It’s important to consider all the options when choosing a domestic partnership over being married. For example, federal law generally does not recognize domestic partnerships, so taxes and benefits can be challenging.
However, some couples benefit from choosing the registered domestic partnership route. For instance, a widow might lose benefits upon remarriage that are not changed by a domestic partnership.
So, to answer Luisa’s concerns: Yes, opposite-sex couples can choose to be domestic partners instead of a married couple.
Please call us at (415) 293-8314 to schedule a confidential appointment with one of our attorneys. Ms. Burger is a California Certified Family Law Specialist and founder of the Law Offices of Judy L. Burger. We assist clients in California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.
Relationships can get messy. Alexis and Callie found this out as soon as Callie started planning their wedding ceremony four years into their registered domestic partnership. The stress triggered negative feelings, and Alexis started reconsidering their relationship. Unfortunately, the situation ended with one partner picking out a wedding cake and the other trying to figure out how to terminate a domestic partnership. Continue reading
As Drake and Dwight’s relationship grew stronger, they decided to register their domestic partnership with the California Secretary of State’s office. However, they then separated four years later. They didn’t know whether you could formally dissolve a domestic partnership but soon learned that divorce is possible. In fact, there are several forms of divorce available including something called ‘summary dissolution.’ Sometimes summary dissolution of a domestic partnership is the best option for everyone.
Chris and Taylor had been a couple for several years before they decided to make it ‘official.’ They had heard of domestic partnerships and same-sex marriage and assumed that the two institutions were basically the same. However, Chris and Taylor learned there were some significant differences when they decided to split up.
Chris and Taylor lived together for ten years before they registered as a domestic partnership in California. Three years later, they married in a formal wedding ceremony surrounded by friends and family in Massachusetts. When their relationship fell apart two years later, they learned that they didn’t know as much about the legal aspects of same-sex marriage as they had thought.
You can be married and registered domestic partners.
Chris and Taylor registered as domestic partners before same-sex marriage became legal. Their status gave them some important benefits and rights.
In 2015, the Supreme Court handed down its landmark decision in Obergefell v. Hodges. States were now required to recognize same-sex marriages validly made in another state. This opened the door for many same-sex couples – including Chris and Taylor – to join the ranks of opposite-sex married couples. Being legally married can be especially helpful because not all states recognize registered domestic partnerships.
Years spent living together before marriage may not count.
In California, marriages over ten years are often given special treatment. For example, awards of spousal support may be more liberal.
In some states, a couple who live together for a certain number of years is considered a married couple. California does not recognize most common-law marriages. If a couple lives together long enough to be considered a common-law couple in another state, California may recognize their time together if the couple divorce in California.
For example, the ten years Chris and Taylor lived together before registering their domestic partnership may be ignored when they divorce. In the eyes of the law, the couple’s marriage only lasted for two years.
This type of situation is incredibly complicated. Discuss your situation with an experienced divorce attorney as soon as possible.
You may divorce in California if married in California
A couple that legally entered into a same-sex marriage in California can now file for divorce no matter where they live at the time of the divorce. Here’s where Obergefell v. Hodges affects same-sex marriage and same-sex divorce. Since states are now required to recognize lawful same-sex marriages made in another state, they must also allow same-sex partners to divorce.
Same-Sex Marriage Issues Are Complicated
The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce proceedings, including same-sex divorces and dissolution of domestic partnerships. Judy Burger is a California Certified Family Law Specialist, and founder of the Law Offices of Judy L. Burger. Please call our offices at 415-293-8314 to set up an appointment with one of our attorneys. We assist clients along the Northern to Central California Coast.
Registered Domestic Partnerships Under California LawIn 2003, the California legislature passed a law that gave a registered domestic partnership the same legal rights and responsibilities as a married couple. Such rights include the right to terminate the legal relationship.
Forming the Registered Domestic PartnershipAdults in a committed relationship may file a Declaration of Domestic Partnership or a Confidential Declaration of Domestic Partnership with the California Secretary of State. They must be:
- Unmarried and not part of another registered domestic partnership;
- Unrelated by blood;
- At least 18 years of age, in most circumstances;
- Either both members of the same sex or an opposite-sex couple where one or both are over 62 years of age; and
- Both consenting to the domestic partnership.
Ending the Registered Domestic PartnershipThere are two basic ways to go about terminating a California registered domestic partnership – an easy way and a slightly more difficult way. The easiest way to dissolve a registered domestic partnership is to file a Notice of Termination of Domestic Partnership with the California Secretary of State’s Office. The parties must meet the following conditions:
- Both have signed the Notice of Termination.
- They cannot have had children during the partnership, and neither party can be pregnant.
- Their partnership must have existed for less than five years.
- They cannot own any real property,
- Their unpaid debts fall below the limit set by state law.
- The parties have agreed on a division of assets and debt.
- They have waived financial support.