Ask the County Law Librarian – Ending Same-sex Marriage and Domestic Partnership

Q. My wife and I became registered domestic partners in 2005. When the California court made same-sex marriage legal in 2008, we got married, too. We are now getting a divorce. Do we need to file two different divorces or can we do it all in one case? Do we even need to officially get divorced since Prop 8 did away with same-sex marriage?

A. First of all, you do need to officially get a divorce to end your same-sex marriage.

Same-sex marriage became legal in California in June, 2008, after the California Supreme Court ruled that restricting marriage to heterosexual relationships was unconstitutional. (In re Marriage Cases (2008) 43 Cal.4th 757). In November, 2008, the voters passed Proposition 8, a constitutional amendment outlawing same-sex marriage.

However, the California Supreme Court ruled in 2009 that same-sex marriages during the five-month window in 2008 remain valid (Strauss v. Horton (2009) 46 Cal.4th 364), so you really are married.

As a result, you will need to formally end both the marriage and the domestic partnership. Luckily, you should be able to end both in the same case.

Use form FL-103 (Petition – Domestic Partnership/Marriage) instead of FL-100 (Petition-Marriage) and check the boxes for both “Domestic Partnership” and “Marriage.” The form asks questions about both the marriage and the domestic partnership; be sure to answer all of the questions. If one spouse files a response, be sure to use FL-123 (Response-Domestic Partnership/Marriage)  instead of FL-120 (Response-Marriage). All the other forms should be the same as a standard divorce case.

The only thing that might make a difference is if you have not been living in California. Domestic partners who registered in California can divorce here even if they no longer live in the state, but married couples have to meet residency requirements –six months in California, and three months in the county where the divorce is filed.

If neither spouse meets those requirements, you can start the marriage portion of the case as a legal separation (which does not have the same residency requirements) then change it to a divorce once one spouse meets the requirements. That would be a way to start the case right away and speed up your final judgment of dissolution.

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P W
Avatar of P W
April 4, 2013 | 2:21 PM

Sounds like it would be easier to just kiss and make up! Good luck to both of you.

April 5, 2013 | 2:48 PM

Howdy Patricia, Coral

You point out what an entangled situation this is and yet you have only scratched the surface. Coral, can you address the situation of a fully valid same sex married couple, one remains in California to protect their full married rights especially in the area of community property and the spouse moves to a DOMA state say Florida, Oklahoma, to follow their employment? What if divorce, death, and or illness including things say dementia of either spouse becomes an issue. Is it easy to get an accurate idea of what could be involved. Is there anything that can be done to prepare for this? Any idea what kind of legal fees could be involved?

Yes Patricia, it is sometimes it is “easier to just kiss and make up!” – in one form or another.

With a lot of trial and error and for many same sex couples the help of some sort of counseling sort out what it means to be a couple following life changes and yes lets kiss and makeup and figure out how we remain a couple is the more productive route as it is for many opposite sex marrieds.

During the current legal quagmire kiss and make up may be the smart thing to do. We have now gone from the days of the quickie divorce states to the gay divorce/no gay divorce states.

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