For same-sex spouses and registered domestic partners in La Jolla, a divorce or partnership dissolution runs under the same California Family Code rules that apply to every marriage. The case is filed in the Superior Court of California, County of San Diego. Parentage, registration history and the date of separation usually shape the case most.
Most people facing the end of a same-sex marriage or domestic partnership in La Jolla are not starting with one simple question. They may have registered as domestic partners years before they married. They may have bought a home together long before either status existed. They may be raising a child whose legal connection to one parent rests on a presumption, a signed declaration or a consent form rather than biology. The real question underneath the search is usually this: which parts of a long, layered relationship does California law actually count? This page walks through that question for families in La Jolla and the surrounding parts of San Diego County.
California Family Law and How It Applies to LGBTQ Couples in La Jolla
Family Code section 297.5 gives registered domestic partners the same rights, protections, benefits, responsibilities and duties as spouses. It gives former partners the same rights and duties as former spouses. The California Family Code governs the dissolution of both marriages and registered domestic partnerships. For a couple in La Jolla, one body of law applies to the property, support and custody questions whichever status, or combination of statuses, they hold.
The history still matters, because it explains why so many relationships have more than one start date. Under AB 205 (Stats. 2003, ch. 421), registered domestic partners have had the rights and duties of spouses from January 1, 2005, whenever they registered. In November 2008, California voters approved Proposition 8. It provided that only marriage between a man and a woman is valid or recognized in California. California allowed no new same-sex marriages from November 2008 until after Hollingsworth v. Perry was decided on June 26, 2013. That case decided standing only. The petitioners did not have standing to appeal the District Court's order, and the Ninth Circuit's judgment was vacated and remanded.
La Jolla is part of the City of San Diego, in San Diego County. Family law matters for La Jolla residents are filed in the Superior Court of California, County of San Diego. The same is true for residents of nearby Pacific Beach, University City and Del Mar. Family Code section 10002 also requires each superior court to maintain an office of the family law facilitator, staffed by a California-licensed attorney with family law experience.
Dissolving a Same-Sex Marriage in California
Family Code section 2320 sets the residency rule. A judgment of dissolution generally cannot be entered unless one spouse has lived in California for six months, and in the county where the case is filed for three months, immediately before filing. For a couple in La Jolla, the county is San Diego County. The statute has a narrow exception for same-sex marriages, covered further down.
Family Code section 2339 sets the waiting period. A dissolution judgment does not end the marriage until six months have passed from service of the summons and petition, or from the respondent's appearance, whichever comes first. The court may extend that period for good cause.
Property follows the community property system. Under Family Code section 760, property acquired by a married person during the marriage while living in California is generally community property, which means it belongs to both spouses equally. Family Code section 2550 generally requires the court to divide the community estate equally. The parties can agree otherwise in writing or by stipulation in open court.
Family Code section 70 defines the date of separation as the date of a complete and final break in the relationship. Two things must show that break: one spouse has told the other they intend to end the marriage, and that spouse's conduct is consistent with that intent. The court considers all relevant evidence. This date matters because it generally marks the end of the period during which new earnings and acquisitions are community property.
Couples who married in California before November 2008, and couples who married after Hollingsworth v. Perry, dissolve their marriages under this same framework. What often differs is the asset history. A home bought in La Jolla in the years before a marriage can raise its own questions. So can a retirement account built during a domestic partnership. Spousal support follows the same Family Code rules for every marriage, and the site's page on LGBT spousal support covers it in more depth.
Dissolving a Registered Domestic Partnership in California
Family Code section 299 provides more than one way to end a registered domestic partnership. Under section 299(a), partners can end a partnership without a court case by filing a Notice of Termination of Domestic Partnership with the Secretary of State, but only if certain conditions all exist at filing, and subject to the further requirements of section 299, including a delay before the termination takes effect. Those conditions include the following:
- Both partners sign the notice.
- There are no children of the relationship, and neither partner, to their knowledge, is pregnant.
- The partnership has lasted no more than five years.
Partnerships that do not meet those conditions are dissolved through the court. For partners in La Jolla, that is the Superior Court of California, County of San Diego.
For marriages, Family Code sections 2400 through 2406 set out a summary dissolution procedure for short, simpler cases. The conditions include these:
- Either spouse meets the section 2320 residency rule.
- There are no children of the relationship, and neither spouse, to their knowledge, is pregnant.
- The marriage lasted no more than five years as of the date of separation.
- Neither spouse owns real property, apart from certain short residential leases.
Section 2406 requires each superior court to make a brochure available that explains this procedure.
Many couples are both registered partners and spouses to each other. Family Code section 299(e) lets them petition to dissolve both the domestic partnership and the marriage in a single proceeding. The partnership did not turn into the marriage when they married. They are two relationships, and the court can end them together. The site's page on domestic partnerships in LGBT divorce goes further into how the two statuses interact.
Registration history can reach well back in time. A couple who registered before January 1, 2005 and never married may have a relationship that began years before their registration. Under AB 205, they hold spousal rights and duties from January 1, 2005. The registration date, the January 1, 2005 date and the date of separation can each matter when the property is sorted out.
Parentage in LGBTQ Families: How California Establishes Who Is a Legal Parent
Family Code section 7611 creates presumptions of parentage. A presumption is a legal starting point that treats a person as a parent unless it is successfully challenged. One presumption covers a person who is or was married to the child's birth mother when the child was born during the marriage, or within 300 days after it ended. Because section 297.5 gives registered domestic partners the same rights as spouses, partnership status can generally support a presumption the same way marriage does.
Family Code section 7571 provides for a voluntary declaration of parentage. Hospital staff offer this form at birth to the birth mother and the other genetic parent or the intended parent of a child conceived through assisted reproduction. The staff witness the signatures and forward the declaration to the Department of Child Support Services. A properly signed declaration can establish parentage without a court order.
Family Code section 7613 addresses assisted reproduction. When a woman conceives with donated sperm or eggs from a donor who is not her spouse, an intended parent who consents is treated in law as a natural parent. The consent should be in writing and signed by both. Without written consent, a court may still find consent if clear and convincing evidence shows an oral agreement, made before conception, that both would be parents. A donor who provides sperm through a licensed physician or sperm bank for another woman's use is generally treated as not being a parent.
SB 274 (Stats. 2013, ch. 564) allows a California court to find that a child has more than two legal parents, where recognizing only two would be detrimental to the child.
California has several routes for establishing or ending parentage, including presumptions, voluntary declarations, judgments, assisted-reproduction consent and relinquishment. Adoption is a separate legal path. The site's guide to LGBT parent adoption and custody explains how adoption affects parental rights. Even so, the firm does not take adoption matters.
For a non-biological parent in La Jolla, figuring out which of these routes applies to their family is often the most pressing question of all.
Child Custody and Support for LGBTQ Parents in San Diego County
Family Code section 3020 states California's policy. The child's health, safety and welfare are the court's primary concern. Children also should have frequent and continuing contact with both parents after separation, unless that contact would not be in the child's best interests.
Family Code section 3011 lists what the court weighs in deciding a child's best interests. The factors include the child's health, safety and welfare, any history of abuse, and the nature and amount of contact with each parent. Custody comes in two kinds. Under section 3003, joint legal custody means both parents share decisions about the child's health, education and welfare. Under section 3004, joint physical custody means each parent has significant periods of physical custody.
A parent's legal parentage status determines whether they can seek custody and visitation. Gender and sexual orientation do not. That is why the parentage section above so often comes first in a La Jolla custody case. The site's page on LGBT child custody covers custody in more depth.
Child support follows the statewide guideline formula in Family Code section 4055. The formula uses each parent's net monthly disposable income and the share of time each parent has primary physical responsibility for the children. It applies the same way regardless of the parents' genders or relationship history. Custody and support matters for families in La Jolla, Pacific Beach, University City and elsewhere in San Diego County are handled by the Superior Court of California, County of San Diego.
Recognition of Out-of-State Marriages and Partnerships
Family Code section 308 provides that a marriage contracted outside California is valid in California if it would be valid under the laws of the place where it was contracted. Some couples now living in La Jolla married in another state or country between November 2008 and June 26, 2013, when no new same-sex marriages were being performed in California. They may still have a marriage California recognizes for dissolution purposes.
Recognition is separate from the right to file here. The section 2320 residency rule still applies to couples who married elsewhere. Section 2320(b) adds a narrow exception for same-sex couples who married in California and now live where the marriage cannot be dissolved (presumed, rebuttably, where the jurisdiction does not recognize the marriage). In that case, the superior court in the county where they married can enter a judgment of dissolution, nullity or legal separation under California law, even if neither spouse lives in California. The proper court is the superior court in the county where the couple married. A couple who married in San Diego County could therefore file in San Diego even after leaving the state.
Domestic partnerships or civil unions registered in another state raise harder questions. Whether California treats one as a registered domestic partnership depends on that jurisdiction's law and on the rights it granted, so the answer is fact-specific. Couples who moved to La Jolla or Del Mar with that kind of history often find it is the first issue to sort out.
What to Look for When Choosing an LGBT Family Law Attorney in La Jolla
The legally distinctive issues in LGBTQ family law sit where three things meet: relationship and registration history, parentage status, and community property. A lawyer handling a La Jolla case needs to be comfortable with all three. That includes AB 205's January 1, 2005 date, section 299(e) dual dissolutions, section 7613 consent, and section 308 recognition. The site's overview of LGBT family law describes the broader range of matters.
Certification is one credential that can be checked directly. The State Bar of California's Board of Legal Specialization certifies attorneys as Family Law Specialists. It is a verified credential that anyone can look up on the State Bar's website, not a marketing label.
This firm has two practice limits. It handles California matters only; its attorney is licensed in California. It does not take adoption matters.
If You'd Like to Talk Through Your La Jolla Case
A La Jolla divorce or dissolution with a long registration history or a non-biological parent rarely fits a generic checklist. A consultation is the place to map the relevant dates: when the relationship began, when the couple registered, when they married, and when they separated. It can also cover which parentage route applies to each child and how those facts affect property and custody in San Diego County. For readers still deciding whether they need legal help at all, the family law facilitator's office at the superior court may be a useful first stop.
To talk through your family's questions, call LGBTDivorceLaw.com at (866) 343-4226 for a confidential consultation.