San Diego Divorce Attorney Blog

With the start of a new year, new laws go into effect around the country. Most are unremarkable, but every so often something interesting happens. Passage of the Domestic Partnership Equality Act (DPEA), known colloquially as the "Gay Divorce Bill," in California is a major event in the ongoing debate over same-sex marriage. With states adopting different laws relating to same-sex marriage, and the federal government still largely bound by the Defense of Marriage Act (DOMA) passed in 1996, same-sex couples have encountered unexpected difficulties if they move from one state to another.

California officially does not recognize same-sex "marriage" since the passage of Proposition 8 in 2008, which amended the state constitution to define "marriage" as a union of a man and woman. It did not affect same-sex marriages performed before November 5, 2008, and California's system of "domestic partnerships" remains in place. "Domestic partnerships" grant a couple the same rights and benefits as marriage within the state, but with some differences. It does not include any of the benefits available to married couples under federal law. Under DOMA, other states do not have to recognize California domestic partnerships. A series of lawsuits have challenged Proposition 8, and a federal judge ordered it overturned in 2010 but stayed enforcement of the order. An appeal is still pending.

The DPEA eliminates a number of differences between "marriage" and "domestic partnership." For example, state law requires that a couple live together for a specified period of time before they may legally enter into a domestic partnership, but couples wishing to marry have no such requirement. An unmarried opposite-sex couple that lives together may obtain a confidential marriage license, but a same-sex couple cannot. The DPEA changes both of these laws to make "marriage" and "domestic partnership" more equal.

Perhaps most significant is how the DPEA deals with divorce among same-sex couples. Existing Calfornia law required at least one spouse to have resided in the state for at least six months in order to file a petition for divorce. This excludes people who have moved away from the state, and it leaves some same-sex couples in a bind if they have moved to a state that does not recognize any sort of same-sex union. Those states have refused to grant divorces to same-sex couples, since they contend the marriage or partnership never legally existed in the first place. The DPEA allows California courts to grant a dissolution of a domestic partnership if they entered into the partnership in California and now reside in states that refuse to dissolve the union.