Marriage Equality Does Not Mean Divorce Equality

Robert Stanley wrote an article Robert Stanley DJ Article on June 27, 2013 about what same-sex marriage could mean in the context of divorce in light of the Supreme Court’s recent landmark rulings in the DOMA and Prop 8 cases. As Stanley notes in his article, “marriage equality in California will not immediately translate into divorce equality.”

According to Stanley, while same-sex marriages may break up for the same reasons and opposite-sex ones do, many same-sex couples will have taken a more complex path before getting to divorce court. For example, they may have moved into together, had a religious commitment ceremony that many viewed as a wedding, registered as domestic partners with the Secretary of State, and then been married in California during the short window in 2008 when same-sex marriages were legal.

“What this means from a family law perspective is that this couple would likely have a relatively complicated set of facts upon which to base any legal split,” Stanley wrote. “Under California law, each of their anniversaries would have potential legal significance with respect to support obligations and community property rights.”

Depending on where they have lived, a number of different legal options have been available to same-sex couples, from civil unions to registered partnerships, domestic partnerships and marriage. Making the issue even more complex is the fact that California courts have handed down a number of decisions that could spark debate when it comes to same-sex divorces.

“Some same-sex couples who considered themselves ‘married’ in all respects but that ‘piece of paper’ chose not to enter into civil unions or domestic partnerships available to them because those relationships did not represent the full extent of their commitments,” Stanley added. “The legal effects of choices like these are highly variable and to a large extent untested and unknown. There is much room for legal argument to be made, and legal precedent to be set.”