For over a decade, same-sex couples in Napa, California have had the right to marry. As a result, this has also included the right to divorce. Filing for divorce as a same-sex couple works the same as it does for opposite-sex couples for the most part, although there are a few aspects and potential challenges unique to same-sex couples.
In order to ensure that all of your rights and interests are being upheld during divorce proceedings, it is essential that you work with a qualified family law attorney with both knowledge and experience working with same-sex divorce.
Hayes Family Law is a boutique Napa divorce firm that focuses exclusively on family law, helping each of our clients to reach a peaceful and amicable solution in their divorce. We understand the emotional toll and legal complexity involved in the divorce process. Each of our attorneys ensures that everyone is treated with respect and kindness as we offer counsel and guidance throughout the proceedings. We seek to avoid litigation where possible but have the skills necessary should your case require going to trial.
If you are in a same-sex marriage and are considering divorce, or if you are already in the process of divorce, let a member of our team walk with you through the process. From the initial consultation to the final outcome, we offer personalized representation that considers your own unique circumstances.
California treats same-sex divorce in exactly the same manner legally as it does opposite-sex divorce. When any couple wishes to end their marriage, they must take the following steps:
- File. The first step in starting the legal process of divorce is to petition for a divorce with the court. Once you’ve filed for a divorce, the legal process has begun.
- Serve. Once the petition is filed, you will then notify your spouse of the intention to divorce by serving them divorce papers.
- Wait. California has a six-month mandatory waiting period that begins once your spouse has been served the divorce papers. This waiting period is intended to provide time for reconciliation and settlement efforts, and the divorce cannot be finalized until after it has ended.
- Finalize. At the end of the six-month waiting period, you will go to court, attend a hearing, and finalize the divorce. The court will make final determinations for property division, child custody, child support, and spousal support at this time.
Because California is a no-fault divorce state, either spouse has the legal right to petition for divorce without the need to establish a fault or provide a reason. While the general process is straightforward, same-sex divorces can become particularly complicated when it comes to the determinations made by the court.
During any divorce process in California, courts will consider various factors when determining property division, child and spousal support, and child custody arrangements. However, many of these factors can present a challenge when same-sex relationships are considered. Same-sex couples may, for example, find it difficult to establish:
- Duration of marriage. Prior to the legalization of same-sex marriage, couples entered into alternative civil unions, such as domestic partnerships, that presented different legal protections. It is possible for many couples, for example, to have been in a relationship for 20 or 30 years but only be legally married for seven or ten years.
- In opposite-sex marriages, there is a legal presumption that any child had in the marriage belongs to the husband. In same-sex marriages, no such legal presumptions exist. In order for each spouse to have legal parentage of children, this must be established separately, such as through adoption.
The extent to which these two matters are established will impact determinations made for:
- Property division. Assets and debts acquired during the marriage are considered community property in California. Depending on the legal start of your marriage, more or less of your property may be subject to division.
- Spousal support. How much spousal support payments are and how long they last will depend on the length of the marriage.
- Child support. Child support is often required of the non-custodial parent. If a spouse has not previously established parentage, this will affect whether child support is required.
- Child custody. Custody is awarded to legal parents only. This means that if parentage wasn’t previously established, one spouse may not be granted rights to child custody.
What Are the Unique Aspects of an LGBTQ Divorce?
Same-sex couples historically face many unique challenges when compared with opposite-sex couples. One common aspect of divorce unique to LGBTQ couples is the difficulty in establishing the length of the relationship. The duration of the marriage impacts both alimony and property division. Because same-sex marriage wasn’t legal until 2013 in California and 2015 for everyone else, a couple may have been in a relationship for 20 years but only legally married for seven years.
How Is Custody Decided in an LGBTQ Divorce?
During a divorce, custody in an LGBTQ divorce is handled in much the same way as in opposite-sex divorces. In California, custody will be decided based on what is determined to be in the best interest of the children. For same-sex couples, however, challenges can arise in establishing legal parentage, as there are no legal presumptions given in same-sex marriages as there are in opposite-sex marriages. Both legal parents can request primary or joint custody, visitation, and child support.
What Is the Average Retainer Fee for a Divorce Lawyer in California?
The average retainer fee for a divorce lawyer in California is between $3,000 – $5,000. Retainers are paid to an attorney at the start of the attorney-client relationship in order to hold or “retain” their services upfront. The exact amount will vary based on different factors, such as the relative simplicity or complexity of the divorce and the experience of the attorney. Most family law lawyers work at a rate of about $300 – $500 per hour.
What if I Can’t Afford a Divorce Lawyer in California?
In California, if you can’t afford a divorce lawyer, it is possible to ask the court to order your partner to pay for one for you. The judge will consider doing so in cases where there is a significant financial disparity between the couple. Especially in cases where some sort of fault led to the dissolution of the marriage, you may be entitled to have all legal fees covered.
If you are considering or are in the middle of a divorce, speak with a qualified and understanding family law attorney today with experience in handling divorces involving same-sex couples. Our team at Hayes Family Law can be trusted to help you retain your rights and defend your interests as everyone seeks a peaceful resolution. To get started, contact our office.
