California Postnuptial Agreements: Legal Protection After Marriage
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Same sex divorce in California follows many of the same legal procedures and requirements as traditional divorces, but involves unique considerations that can impact property division, child custody, and other aspects of the dissolution process. Since the 2015 Supreme Court decision in Obergefell v. Hodges that legalized same-sex marriage nationwide, same-sex couples have had equal access to marriage—and divorce—under the law. However, the legal landscape continues to evolve, and many couples face distinctive challenges when navigating the divorce process.
This guide aims to provide same-sex couples in California with the essential information needed to understand their rights, responsibilities, and options when considering or pursuing divorce in 2025.
California was at the forefront of recognizing same-sex relationships long before federal law caught up. This progressive history has created a complex legal landscape that impacts divorce proceedings for same-sex couples today.
Same-sex marriage in California has experienced a complex legal journey. In 2008, the California Supreme Court initially legalized same-sex marriage, but later that year,
Proposition 8 eliminated this right. After legal challenges and the Supreme Court’s decision in Hollingsworth v. Perry (2013), same-sex marriage resumed in California. Finally, in 2015, the landmark Obergefell v. Hodges decision established marriage equality nationwide.
Today, California law treats same-sex marriages exactly like opposite-sex marriages in divorce proceedings. This means that all provisions of the California Family Code apply equally to all marriages, regardless of the spouses’ genders.
To file for divorce in California, at least one spouse must have been a state resident for at least six months and a resident of the county where filing for at least three months (California Family Code § 2320).
California remains a “no-fault” divorce state, meaning neither party needs to prove wrongdoing—the only grounds necessary are “irreconcilable differences” (California Family Code § 2310).
Attorney Note: Even if you were married in another state or country, you can divorce in California if you meet the residency requirements. This is particularly important for same-sex couples who may have traveled to other jurisdictions to marry before it was legal nationwide.
One of the most significant challenges in same-sex divorce involves couples who were in committed relationships long before they could legally marry. Many same-sex couples lived together as domestic partners or in marriage-like relationships for years or decades before legally marrying when it became possible.
In California, courts may consider these “pre-marriage” periods when:
The case of In re Marriage of Barse & Pinkerton (a fictional case for illustrative purposes) demonstrates this principle:
Example Scenario: Marina and Jacqueline lived together for 12 years before legally marrying in 2015. During this time, they purchased a home, accumulated retirement savings, and raised a child together.
When they divorced in 2025, the court considered their entire 22-year relationship—not just their 10-year legal marriage—when dividing property and determining spousal support.
California is a community property state, meaning assets and debts acquired during the marriage are generally divided equally. However, same-sex couples often face questions about:
Under California Family Code § 2550, courts must divide community property equally unless the parties agree otherwise.
However, determining what constitutes community versus separate property can be particularly complex for same-sex couples with lengthy pre-marital relationships.
Important Update: Beginning January 1, 2027, new legislation (Civil Code §2951) will require conventional home mortgage lenders to allow one spouse to assume the other spouse’s portion of mortgage debt in divorce cases.
This addresses a longstanding problem where the spouse keeping the family home couldn’t remove their ex-spouse from the mortgage.
The new law applies to:
This change will significantly benefit same-sex couples where one partner wishes to keep the family home after divorce, as it prevents the departing spouse from remaining financially entangled through the mortgage.
Attorney Note: Documentation of joint purchases, shared expenses, and evidence of intent to share assets from before legal marriage can be crucial in property division cases. These records should be gathered early in the divorce process.
Many same-sex couples registered as domestic partners before marriage was legal. Under California Family Code § 297.5, registered domestic partners have the same rights and responsibilities as married couples. If you were domestic partners who later married, both relationships must be addressed in your divorce.
The dissolution process must formally terminate both the marriage and the domestic partnership, which might require additional paperwork (California Form FL-103).
Child custody matters can be particularly complicated in same-sex divorces, especially when only one parent has a biological connection to the child or when legal adoption wasn’t completed.
In California, several paths to legal parentage exist for same-sex couples:
Under California Family Code § 7611, a person is presumed to be a child’s parent if the child is born during the marriage or the person receives the child into their home and openly holds the child out as their natural child.
However, complications can arise when:
In determining custody arrangements, California courts follow the “best interest of the child” standard (California Family Code § 3020) regardless of parents’ gender identity or sexual orientation.
Courts consider factors including:
Custody arrangements typically include:
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Attorney Note: Non-biological parents without formal adoption who have acted as parents may still petition for custody rights under the “de facto parent” doctrine. However, these cases are complex and absolutely require legal representation.
Before filing, ensure at least one spouse meets California’s residency requirements (six months in the state, three months in the filing county).
New for 2025: If both parties have relocated from the county where you originally filed, California now allows courts to transfer family law proceedings to your new county of residence.
This expanded transfer authority under Code of Civil Procedure §397.5 can save significant time and travel expenses.
The divorce process traditionally begins with filing a Petition for Dissolution of Marriage or Domestic Partnership (California Form FL-100) and a Summons (Form FL-110). If you have children, you’ll also need to file a Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (Form FL-105).
Attorney Note: If you need to dissolve both a marriage and a domestic partnership, you may need to file Form FL-103 instead of FL-100.
Beginning January 1, 2026, California will offer a streamlined joint petition process for couples seeking an amicable divorce. Under the new Family Code §2342.5, both spouses can file a joint petition and joint summons, eliminating the need for formal service of process. This can significantly reduce paperwork, time, and procedural complications.
Key benefits of the joint petition approach include:
Attorney Note: If you need to dissolve both a marriage and a domestic partnership, you may need to file Form FL-103 instead of FL-100.
The non-filing spouse must be legally served with copies of all filed documents, typically using a Proof of Service of Summons (Form FL-115).
Both parties must complete and exchange:
New for 2025: In select California counties (including Alameda, Contra Costa, Los Angeles, Orange, San Diego, and others), courts may now utilize remote court reporting for certain family law proceedings under Government Code §69959.5.
This pilot program allows certified court reporters to capture verbal records from locations outside the courtroom, which may affect the scheduling and conduct of financial disclosure hearings and other proceedings in your case.
These documents provide a full picture of each spouse’s financial situation and form the basis for property division and support determinations.
While the divorce is pending, either spouse can request temporary orders for:
These requests typically use a Request for Order form (Form FL-300).
Most divorce cases settle without a trial through:
Once all issues are resolved, the court issues a judgment that officially ends the marriage. This requires:
If no settlement is reached, the case proceeds to trial where a judge will make decisions on all disputed issues.
DO create a comprehensive relationship timeline, including evidence of when you began cohabiting, registered as domestic partners (if applicable), and married. Include significant financial decisions, property acquisitions, and agreements made throughout the relationship—especially during pre-marriage periods when legal recognition wasn’t available.
DO seek legal counsel from an attorney with specific experience handling same-sex divorce cases. These attorneys understand the unique legal complexities that same-sex couples face and can navigate the evolving legal landscape more effectively.
DO resolve any outstanding legal parentage issues before beginning divorce proceedings if possible. For non-biological parents who haven’t completed second-parent adoptions or obtained parentage judgments, addressing these matters proactively can prevent serious custody complications.
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DO explore alternative dispute resolution methods like mediation or collaborative divorce. These approaches often provide more privacy, efficiency, and creativity in resolving the unique issues same-sex couples face in divorce.
DO collect thorough documentation of all financial contributions throughout your relationship—not just during your legal marriage. This includes records of:
DON’T assume that only your legal marriage period counts for property division or support calculations. Courts increasingly recognize that many same-sex couples functioned as married couples long before legal recognition was available.
DON’T forget to formally dissolve any registered domestic partnership along with your marriage. Failing to address both legal relationships can create complications later.
DON’T assume that being named on a child’s birth certificate automatically guarantees full parental rights in a divorce. Non-biological parents should verify their legal standing and take steps to formalize their rights if necessary.
DON’T attempt to divide qualified retirement accounts without a proper Qualified Domestic Relations Order (QDRO). Improper divisions can trigger significant tax penalties and complications.
DON’T agree to property division that disregards assets acquired during your pre-marriage relationship if those assets were intended to be shared. California courts have increasingly recognized claims to property acquired during committed relationships before legal marriage was available.
DON’T make decisions about property transfers, support payments, or filing status without consulting a tax professional familiar with same-sex divorce issues. The tax implications of divorce can be significant and require specialized knowledge.
DON’T communicate about sensitive divorce matters through unprotected channels like social media, email, or text messages. Anything you communicate can potentially be used in court proceedings.
DON’T overlook health insurance continuity. If you’re covered under your spouse’s policy, you’ll need to plan for alternative coverage after divorce, which may involve COBRA coverage or seeking new insurance through Covered California.
Attorney Note: The unique circumstances of many same-sex marriages—particularly those involving lengthy pre-marriage relationships—often require specialized legal approaches.
What works for traditional divorce cases may not adequately address the complex property, support, and parental rights issues that arise in same-sex divorce proceedings. Professional guidance is strongly recommended.
Mistake: Assuming that only the legal marriage period counts for property division or support.
Solution: Document your entire relationship timeline, particularly financial entanglements before legal marriage. Include evidence of:
Mistake: Assuming that being on a birth certificate or raising a child together automatically grants full legal rights.
Solution: Confirm legal parentage status early. If adoption or parentage judgments were never completed, address this immediately, ideally before beginning divorce proceedings.
Mistake: Dissolving the marriage but forgetting to terminate a registered domestic partnership.
Solution: Use the appropriate forms (FL-103 if applicable) to ensure both legal relationships are properly terminated.
Mistake: Failing to consider tax consequences of property division and support arrangements.
Solution: Consult with both a family law attorney and tax professional before finalizing agreements, particularly regarding:
Mistake: Attempting to navigate a complex same-sex divorce without appropriate legal representation.
Solution: At minimum, consult with an attorney experienced in LGBTQ+ family law issues, even if you plan to handle aspects of the divorce yourself. The investment in proper legal guidance can prevent costly mistakes.
When same-sex couples divorce in California, the court primarily divides property acquired during the legal marriage under community property laws. However, courts may consider property acquired during pre-marital cohabitation or domestic partnership under several legal theories:
Documentation of financial contributions, joint purchases, and agreements from throughout the relationship is crucial to substantiate claims to property acquired before legal marriage.
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Non-biological parents in same-sex relationships can have full legal parental rights equal to biological parents if they:
Without these legal steps, a non-biological parent may face challenges in custody proceedings but might still petition the court as a “de facto parent” or “psychological parent” if they’ve established a parent-child relationship. California courts increasingly recognize the importance of maintaining children’s relationships with non-biological parents who have functioned in parental roles.
California has a mandatory six-month waiting period from the date of service before a divorce can be finalized (California Family Code § 2339). However, the actual timeline depends on several factors:
Same-sex divorces involving questions about pre-marital property rights or complicated parentage issues may take longer to resolve than typical divorce cases.
Courts primarily consider the length of the legal marriage when determining spousal support duration under California Family Code § 4320. However, for same-sex couples who couldn’t legally marry until recently, courts may consider:
While not guaranteed, California courts have shown flexibility in recognizing the unique circumstances of same-sex couples when determining support. The case must be presented with strong evidence of the committed relationship that predated legal marriage.
Retirement benefits acquired during the legal marriage are generally considered community property and divided equally. For benefits accrued during pre-marriage cohabitation:
Attorney Note: The division of retirement benefits is technically complex and typically requires specialized assistance from a QDRO attorney or financial professional.
California recognizes valid same-sex marriages performed in other jurisdictions. If you meet California’s residency requirements, you can file for divorce in California regardless of where you were married.
For marriages performed before nationwide recognition, California generally recognizes the marriage as valid from the date it was performed, not just from the date it became recognized in California.
Many same-sex couples find that alternative dispute resolution methods offer advantages over traditional litigation:
Mediation involves working with a neutral third party to reach agreement on divorce terms. Benefits include:
Attorney Note: Even in mediation, each spouse should have independent legal counsel to review agreements before signing.
Collaborative divorce involves a team approach where both spouses and their attorneys commit to resolving issues without court intervention. The process may also include:
This approach can be particularly valuable for complex same-sex divorces where specialized expertise in LGBTQ+ family issues is beneficial.
Navigating a same-sex divorce in California requires careful attention to the unique legal issues that may arise from the complex history of marriage equality. From addressing pre-marriage relationships to ensuring parental rights are protected, the process demands both legal knowledge and sensitivity to the distinctive challenges faced by LGBTQ+ couples.
While this guide provides comprehensive information on same-sex divorce in California, every relationship and divorce situation is unique. Professional legal guidance is essential to ensure your rights are protected, particularly when:
At Family Law Matters, our Riverside attorneys understand the nuanced issues involved in same-sex divorce and are committed to helping you navigate this challenging process with dignity and respect for your family’s unique circumstances. Contact us at 951-972-8287 or visit temeculadivorce.com to schedule a consultation.
California Courts. (2025). Same-Sex Marriage and Divorce. https://www.courts.ca.gov/same-sex-marriage.htm
California Department of Public Health. (2025). Domestic Partnership Registry. https://www.cdph.ca.gov/Programs/CHSI/Pages/Vital-Records-Obtaining-Certified-Copies-of-Domestic-Partnership-Certificates.aspx
California Judicial Council. (2025). Divorce or Separation. https://www.courts.ca.gov/selfhelp-divorce.htm
California Legislative Information. (2025). California Family Code. https://leginfo.legislature.ca.gov/faces/codesTOCSelected.xhtml?tocCode=FAM
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