If you live in Del Mar and are ending a same-sex marriage, your case is generally filed in the Superior Court of California, County of San Diego, once one of you has lived in California for six months and in San Diego County for three months. A domestic partnership registered in California can be dissolved in a California superior court even if neither of you still lives in the state. California applies the same dissolution rules to every marriage. Your relationship and parentage history shapes the outcome.
You may be reading this after a conversation at home that changed things, or months into a separation that has quietly become permanent. If you are in Del Mar, Solana Beach or Carmel Valley and your relationship began years before you could marry, the hard questions are often not "how do I file" but "when did our partnership legally begin," "what counts as ours," and "will my standing as a parent hold up if I did not give birth." Most people facing a same-sex divorce in Del Mar reasonably wonder whether a standard divorce guide even fits their life. This page walks through where the law treats your case exactly like any other, and where your registration dates, marriage date and children's parentage make it different.
Same-Sex Divorce in California: What the Law Actually Requires
Family Code section 2320 sets the residency rule: except as subdivision (b) provides for certain same-sex marriages entered in California, a judgment of dissolution may not be entered unless one spouse has lived in California for six months and in the county of filing for three months immediately before the petition is filed. Del Mar is in San Diego County, so a Del Mar resident who meets that rule files in the Superior Court of California, County of San Diego. The same is true for spouses living in La Jolla, Rancho Santa Fe or Encinitas.
The marriage itself is governed by ordinary California dissolution law. What sets these cases apart is history. In November 2008, California voters approved Proposition 8, providing that only marriage between a man and a woman is valid or recognized in California. No new same-sex marriages took place in California from November 2008 until after the U.S. Supreme Court decided Hollingsworth v. Perry on June 26, 2013. That decision turned on standing alone: the petitioners did not have standing to appeal the District Court's order, and the Ninth Circuit's judgment was vacated and remanded. Many couples were together throughout that gap, and some registered as domestic partners first.
A registered domestic partnership is a state-registered relationship between two adults who, in the words of Family Code section 297, "have chosen to share one another's lives in an intimate and committed relationship of mutual caring." Under Family Code section 297.5, enacted through AB 205 (Stats. 2003, ch. 421), registered domestic partners have had the same rights, protections and duties as spouses from January 1, 2005, whenever they registered.
If you registered and later married each other, you have two legal relationships, not one. Family Code section 299(e) lets partners who are also married to each other ask the court to dissolve both the domestic partnership and the marriage in a single proceeding. The partnership does not disappear into the marriage, and it does not end on its own when the marriage ends.
Community Property and the Relationship-History Problem
Family Code section 760 is the starting rule: except as otherwise provided by statute, property acquired by a married person during the marriage while living in California is community property, meaning it belongs equally to both spouses. Our overview of community property for same-sex couples covers how equal division works in more depth.
Two dates bracket the community period. The first is when the legal relationship began. The second is the date of separation, which Family Code section 70 defines as the date a "complete and final break" occurred, shown by both one spouse expressing the intent to end the marriage and conduct consistent with that intent. A court considers all relevant evidence in fixing that date, and a few months either way can matter when a home, a business interest or a retirement account kept growing.
The first date is where same-sex cases diverge. Because section 297.5 gives registered partners the rights and duties of spouses, a couple who registered before marrying may have a community period that reaches back to the partnership rather than starting at the wedding, subject to the January 1, 2005 effective date of those rights. Couples who were together during the Proposition 8 years without registering raise a different question: property earned during an unregistered stretch is not automatically community property, and the analysis turns on whether and when a partnership was registered. These questions often come up around the family home in a same-sex divorce and around retirement accounts in same-sex divorce.
Family Code section 770 defines separate property, which stays with its owner: property owned before marriage, property received by gift, bequest, devise or descent, and the rents, issues and profits of that property. Separate funds that were mixed with community funds, for example an inheritance deposited into a joint account, often have to be traced back to their source to keep their separate character.
Spouses also owe each other a fiduciary duty under Family Code section 721, a duty of "the highest good faith and fair dealing," which includes giving the other spouse access to records and full information about transactions affecting community property. And under Family Code section 1500, spouses' property rights may be altered by a premarital agreement or other marital property agreement, so any written agreement you signed belongs in the picture early.
Dissolving a California Registered Domestic Partnership
Family Code section 299 governs how a registered domestic partnership ends. Section 297.5(b) gives former registered partners the same rights and duties as former spouses, so property, support and custody questions are analyzed under the same family law framework used for marriages.
Some partnerships can end without a court case. Section 299(a) allows partners to terminate by filing a Notice of Termination of Domestic Partnership with the Secretary of State, but only if every statutory condition exists at the time of filing. Those conditions include that both partners sign the notice and that there are no children of the relationship, born before or after registration or adopted after registration, and that neither partner, to their knowledge, is pregnant. The statute lists further conditions as well, and termination is not immediate: under section 299(b) it takes effect six months after the notice is filed with the Secretary of State, unless before then either partner files a notice of revocation with the Secretary of State and sends a copy to the other. Under Family Code section 298, the Secretary of State's forms require a notary's acknowledgment to be valid.
When a partnership does not meet those conditions, or the partners disagree about property or children, the dissolution proceeds in court. For Del Mar, Solana Beach and Carmel Valley residents, that is the Superior Court of California, County of San Diego. And where the partners also married each other, section 299(e) allows one proceeding for both relationships rather than two separate cases.
Relationships formed elsewhere need their own look. Under Family Code section 299.2, a legal union other than marriage that was validly formed in another jurisdiction and is substantially equivalent to a California domestic partnership is recognized here as a valid domestic partnership, whatever it is called. A civil union from another state may therefore carry California partnership consequences in a San Diego County case.
Parentage in LGBTQ Families: Why It Matters Before You File
Parentage, the legal status of being a child's parent, is where the stakes in a same-sex divorce are often highest. If you are the parent who did not give birth, it is natural to want certainty about your place in your child's life before custody is decided, and California law offers more than one route to that certainty.
Family Code section 7611 sets out parentage presumptions. One applies when the presumed parent and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after it ends. The statute lists other presumptions based on different circumstances as well. Because section 297.5 gives registered partners the rights and duties of spouses, partnership history can matter here too.
For children conceived through assisted reproduction, Family Code section 7613 provides that when a woman conceives using donated sperm or eggs, with the written consent of another intended parent, that intended parent is treated in law as the child's natural parent. The consent should be in writing and signed by both, but if it was not, a court may still find consent if there is clear and convincing evidence of an oral agreement, made before conception, that both would be parents.
A voluntary declaration of parentage, under Family Code section 7570 and following sections, is another route in limited cases. Under section 7573, it may be signed by the woman who gave birth together with a person who is a parent under section 7613 of a child conceived through assisted reproduction, or, if she is unmarried, together with a genetic parent. The Legislature describes it as a simple administrative system for establishing parentage without a lengthy court process. California also allows a court, under SB 274 (Stats. 2013, ch. 564), to find in some circumstances that a child has more than two parents. Court judgments are a further route.
Adoption also creates parental rights, and many families used it to confirm a non-biological parent's status. This firm does not take adoption matters, but where an adoption already happened, its legal effect on parentage is part of the custody analysis in the divorce.
Why does timing matter? A person who is not a legal parent stands in a very different position on custody and support from one who is. When one spouse's parentage rests only on an informal arrangement, resolving it before or during the dissolution keeps the custody and support orders on solid footing for both parents and for the child.
Custody and Support When Both Parents Are the Same Sex
Family Code section 3020 states California's policy that a child's health, safety and welfare are the court's primary concern, and that children should have frequent and continuing contact with both parents after separation, except where that contact would not be in the child's best interest.
Custody has two parts. Legal custody is the right to make decisions about a child's health, education and welfare; physical custody is where the child lives. Both are decided under the best-interest standard in Family Code section 3011, which directs the court to consider factors including the child's health, safety and welfare and any history of abuse. Nothing in that standard turns on whether parents are the same sex. What matters, once parentage is settled, is the child.
Child support is set by the statewide uniform guideline in Family Code section 4055. The formula's main inputs are both parents' net monthly disposable income and the approximate percentage of time each parent has primary physical responsibility for the children. The same parentage point applies in both directions: a legal parent can seek support and can be ordered to pay it.
Families who later move face interstate questions. California has adopted the Uniform Child Custody Jurisdiction and Enforcement Act, Family Code section 3400 and following, which governs which state's courts decide custody and how custody orders travel across state lines. Same-sex spouses married in California who have since moved away may also be able to divorce in California under section 2320(b), with the case filed in the superior court of the county where the marriage took place, if their new state will not dissolve the marriage; see our page on divorce after moving away.
For Del Mar and Coastal San Diego County Readers
Dissolution and parentage proceedings for Del Mar residents are filed in the Superior Court of California, County of San Diego. The same court handles cases for neighbors in Solana Beach, Carmel Valley, Rancho Santa Fe, La Jolla, Encinitas and Carlsbad, and across coastal San Diego County. Under Family Code section 10002, each superior court maintains an office of the family law facilitator, staffed by a licensed California attorney, which offers general information to people handling family cases.
LGBTDivorceLaw.com handles California matters only; its attorney is licensed in California. It also does not take adoption matters. Within California family law, the focus here is the set of issues traced above: registration and marriage dates, the Proposition 8 gap, partnership and marriage dissolved together, and parentage for non-biological parents. Couples considering a pause rather than an ending may find the page on same-sex legal separation useful.
Whether you live in Del Mar, a few miles inland in Carmel Valley or up the coast in Encinitas or Carlsbad, the legal questions are California questions, decided under the same statutes.
If You'd Like to Talk Through Your Del Mar Case
A same-sex divorce in Del Mar often turns on dates that no form asks about: when you registered, when you married, when the relationship finally ended, and how each child's parentage was established. A consultation is the place to lay those dates side by side and talk through your community property, parentage, and custody and support questions. If your question is about an adoption itself, that is outside this firm's practice, though the related parentage, custody or divorce question is not.
To talk through your Del Mar case, call LGBTDivorceLaw.com at (866) 343-4226 for a confidential consultation.