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Will California recognize a SAME SEX MARRIAGE from Vermont?

Q. My same sex spouse and I were married in Vermont in 2001 but moved to Palm Springs five months ago. Now it looks like we are splitting up. She works full time and I take care of the home. Can I seek spousal support in California and get our marriage dissolved here?


As you probably know, Vermont was the first state to offer civil union status to same-sex couples (2000) which was identical to that offered to opposite-sex couples. California was the first state to offer any legal status to same-sex couples. Today the only states/territories that permit same-sex marriages or the equivalent civil unions are Connecticut, Washington D.C., Iowa, Massachusetts, New Hampshire, and Vermont.

Other states give varying recognition to same sex partnerships - for instance, California, Nevada, Washington, and Oregon give broad recognition to domestic partners and other states like Colorado and Maine give limited recognition.

In California some 18,000 couples marry between June 16, 2008 and November 4, 2008, when the window closed on same-sex marriage according to our Supreme Court's ruling in Straus v. Horton. Our office has assisted some of these couples in divorce in our offices since that time.

Even though it is not presently possible for same-sex couples to marry in California, California will recognize valid marriages and civil unions from other states.

On January 1, 2010, Family Code section 308 was amended to recognize any "marriage" between two persons of the same sex outside of California which is valid by the laws of that state so long as the marriage was contracted prior to November 5, 2008 (the date the California Constitutional Amendment was upheld prohibiting same-sex "marriage").

As to same sex marriages that are lawful in other states which occur after November 5, 2008, California will not allow them to be called "marriages" but will accord these couples all of the rights of California law concerning marriage.

This leaves open the question of what we call dissolutions between "married" same sex couples in California that were entered after November 4, 2008. Clearly in your case California recognizes a full-blown marriage in the traditional use of the term because you legally married in 2001 in Vermont. But for those married since 11/4/08 in another jurisdiction there is uncertainty which California Judicial Council forms (which are mandatory) be utilized because those marriages are not domestic partnerships (Family Code section 299.2), nor are they "marriages." Our office practice will be to simply use the old forms and modify them as necessary.

You may file a marriage dissolution in this state and request all orders that any divorcing couple could request; however, please note that California requires that you be a resident of this state for at least six months before filing for Dissolution but that you can opt to file a Legal Separation Petition at this time, obtain the necessary support orders, and then file an amended pleading for Dissolution once you perfect residency.

For more info on same-sex and LGBT marriages, visit us here!

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Good luck!

Thurman W. Arnold III

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