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
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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Thurman W. Arnold III