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Same-Sex Marriage FAQ | Divorce & Dissolution FAQ
LGBT Parenting FAQ
Are We Still Married? Same-Sex Marriage FAQ
by Paul W. Thorndal, Attorney at Law
© January 2012
UPDATE: Effective January 1, 2012, California courts will take jurisdiction to dissolve the marriages of same sex couples who married in California during 2008, even if neither spouse is a resident of California. See below for more information.
Q: After many years together, my partner and I finally got married in California after the Supreme Court issued its marriage opinion in May 2008. Is our marriage still valid since Proposition 8 was passed by a majority vote in November 2008?
A: Yes, presuming you properly followed marital procedure of obtaining a marriage license, having a ceremony, and recording the certificate afterward, your California marriage entered before November 5, 2008, remains a valid and recognized marriage. On May 26, 2009, the California Supreme Court issued its opinion in the three consolidated appeals of the constitutionality of Proposition 8, which I will call the “Prop 8 Opinion.” The Prop 8 Opinion held that Prop 8 was a valid constitutional amendment which prevents California recognition of same sex marriages prospectively beginning November 5, 2008. The Court held that validly-entered California marriages entered before Prop 8 was passed by the voters remain valid and recognized marriages. After the Court’s Prop 8 opinion, the California legislature enacted Family Code section 308 to state that same sex marriages legally performed anywhere before November 5, 2008, are legally recognized marriages in California.
In case you are unfamiliar with the history, in May 2008, the California Supreme Court issued its opinion that California’s Defense of Marriage Act (DOMA), enacted as a statutory voter initiative in 2000 (then called Prop 22), violated the California Constitution. In mid-June 2008, the opinion became effective, and County Clerks began issuing marriage licenses to same sex couples. On November 4, 2008, California voters passed Prop 8 as a constitutional amendment by a majority vote. Now officially called Article I, Section 7.5 of the California Constitution, and codified at Family Code section 308.5, Prop 8 says, in its entirety, “Only marriage between a man and a woman is valid or recognized in California.” Prop 8 became effective the next day, November 5, 2008, and California County Clerks stopped issuing marriage licenses to same sex couples, although some couples have continued to marry in other jurisdictions, as discussed below. As discussed in this FAQ, the Prop 8 Opinion resolved some but not all of the questions which have arisen.
Q: My partner and I live in California, and we would really like to get married. Can we get married in Massachusetts, or some other state, and have our marriage recognized here in California?
A: After the California Supreme Court upheld Prop 8 as constitutional on the grounds that it affected only the word “marriage,” but not the rights and responsibilities of marriage, the California Legislature enacted a reciprocity law which specifically addresses marriages entered into by same sex couples in other states or foreign countries. Family Code section 308(c) states that marriages between members of the same sex performed outside of California on or after November 5, 2008, are recognized as legal unions conferring all rights and benefits of marriage, “with the sole exception of the designation of ‘marriage.’” Practically speaking, these recent changes to the law now mean that California recognizes all marriages, domestic partnerships and civil unions from other states and foreign countries as conferring all spouses’ rights and obligations under California law. So, if you and your partner want to go to Massachusetts or some other state to get married, go get married! Whether or not to marry is a personal choice that couples must make together. Many states and foreign countries which permit same sex marriage do not impose residency restrictions on getting married. Your marriage will be recognized here in California as conferring all the rights and obligations of marriage, “other than the designation of ‘marriage.’” To avoid any confusion, given the fact that these relationships are recognized as providing spousal rights and obligations without actually having a name, we recommend that you also register as domestic partners, but under the current law that is not necessary.
Q: Six months after my long-time partner and I were finally married in California in the summer of 2008, she told me that she wants out of the relationship. Can we get a divorce now that Proposition 8 has passed, or do we even need a divorce?
A: To dissolve a California marriage, you need a judgment of dissolution by a court with appropriate jurisdiction. The Prop 8 Opinion affirmatively resolved the question of the validity of your California marriage entered before November 5, 2008, so a California Superior Court will recognize your marriage for purpose of dissolving it. You must comply with all laws regarding dissolution of your marriage, or, in other words, go through the same divorce process that heterosexual married couples must go through to obtain a judgment of dissolution of the marriage.
Q: My partner and I are ending our relationship. We married in September 2008, but we also registered our domestic partnership with the state in 2002. Does our domestic partnership registration in addition to our marriage change the situation?
A: Not really. Because the Prop 8 Opinion held that marriages entered into by same sex couples before enactment of Prop 8 remain valid and recognized in California, you are both married and registered domestic partners, and you need a judgment dissolving both relationships. Because California grants the same basic rights and responsibilities of marriage to domestic partners, the two overlapping relationships impose the same obligations. Whichever occurred earlier, however, will be considered the date California marital laws began to apply. California procedure requires that you commence an action for dissolution choosing a form either drafted for marriage or a separate form drafted for domestic partnership. If you have to dissolve both relationships, you can do it in one action but you have to pick one of the forms to commence the action. I recommend picking the form appropriate for whichever relationship was entered first, and then checking the box marked “other relief requested” at the bottom of the second page of the Petition, and writing in the space provided, for example, “The parties also request an order dissolving their California marriage entered on September 15, 2008,” or whatever is appropriate. The only real distinction between the two is the jurisdictional requirement, which is discussed in more detail below. The Judicial Council of California is working to revise the divorce forms to consolidate the domestic partnership and marriage forms into a single form, and as soon as that process is complete the forms should be less confusing to couples with overlapping relationships. Since California has residency restrictions for dissolution of marriage, couples that have to dissolve both a marriage and a domestic partnership should bring an action in the county that meets the jurisdictional requirement for dissolution of marriage.
Q: Isn’t there something we can do other than a full divorce action in Court to dissolve our domestic partnership and marriage?
A: Not really. For some small minority of couples who meet a very restrictive set of conditions – e.g., marriage/DP of less than 5 years, no children, no real property, very low debt threshold, etc. – there is a Summary Dissolution procedure available for marriages and a Summary Termination procedure available for domestic partnership. The restrictions are discussed in more detail in our Domestic Partnership FAQ, so if you think you might qualify, please see the discussion there for more details. However, the summary termination procedures still require complete financial disclosures and a written property agreement, so anyone terminating a marriage or domestic partnership with this more limited procedure should at least consult an attorney to make sure that they are doing it correctly.
Q: My husband and I live in Arkansas (or any other state that doesn’t recognize same sex marriages), where we have lived together for many years. We came to California on vacation for the July 4th 2008 weekend and we got married at San Francisco City Hall. Now we are breaking up. Am I legally married? How can I divorce him?
A: Effective January 1, 2012, California courts will take jurisdiction to dissolve the marriages of same sex couples who married in California during 2008, even if neither spouse is a resident of California. The attorneys at Wald & Thorndal helped write a new statute that passed into law in October 2011, to help solve the problem of same sex couples who came to California and married in 2008 and have since broken up, but live in states that don’t recognize the marriage and therefore won’t grant a divorce. Under new California Family Code § 2320(b), California can dissolve the marriages of out-of-state same sex spouses if: (1) the marriage was entered into in California; and (2) neither party to the marriage currently resides in a state that will dissolve the marriage. If the couple resides in a state that does not recognize the marriage, that creates a “rebuttable presumption” that the home state also will not dissolve the marriage. For couples in this situation, the dissolution action must be filed in the county where the marriage was entered. What this means, in practical terms, is that the first step for anyone who resides out of state and was legally married in California is to check out the law of the state where you reside. If that state doesn’t have a DOMA, then you may very well be able to get divorced in your home state. Most states won’t recognize same sex marriages, though; and many states that don’t recognize the marriages of same sex couples also refuse to divorce these couples. California will now dissolve these couples’ marriages. However, California courts will apply California marital law, regardless of where the spouses live, so it will be important to become familiar with California community property law and to understand your legal rights and responsibilities as spouses under California law, regardless of where you now live.
Q: Does it matter if we were married in another state? My husband and I married in Massachusetts in 2006. In summer 2008 we tried to marry in California, but we were refused a marriage license because we were already married. Now that Proposition 8 passed, are we married or not? We have separated but don’t know if we need a legal action to dissolve our MA marriage, or if that is even possible.
A: Many couples were refused licenses because they were already married (to one another), and many couples married again in California even though they had already married in Massachusetts, Canada, Spain, or some other jurisdiction which permitted same sex marriage. Some counties permitted re-marriage to the same spouse, and some counties refused to issue licenses. This is because one of the prerequisites for a marriage license is both parties must be unmarried. The Supreme Court upheld Prop 8 as prohibiting marriages between same sex couples in California after November 4, 2008, but the Court upheld marriages performed in California before November 5, 2008 as legal and valid marriages, without specifically addressing marriages performed outside of California in other jurisdictions before Prop 8 was passed. Subsequently, Family Code section 308 was enacted by the California Legislature to recognize all marriages between same sex couples legally performed anywhere before November 5, 2008. This reciprocity law means that your 2006 Massachusetts marriages is recognized in California as a valid marriage.
