In a California same-sex divorce, the date of marriage is the date the two of you entered a legally valid marriage. That means one licensed and solemnized in California, or one valid where it was performed. That date starts the community property period and shapes spousal support. A registered domestic partnership has its own registration date, which anchors the partnership's own rights.
Most people facing this question have a relationship that does not fit neatly on one line of a court form. There may have been a commitment ceremony years before marriage was possible. A domestic partnership may have been registered with the state. A wedding may have happened in another state, or during the years when California was not marrying same-sex couples at all. Someone in that position is often trying to work out which of those dates the law will actually count. They may also be worried that years of a shared life could fall outside the period a court looks at.
This article walks through what "date of marriage" means as a legal term. It covers how the Proposition 8 years affect it, how a prior domestic partnership fits alongside a marriage, and what happens when a marriage turns out not to be legally valid. It also explains how the date feeds into spousal support.
What the Date of Marriage Means Under California Family Law
Family Code section 760 provides that, except as otherwise provided by statute, "all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property." Community property is property the two spouses own equally because it was acquired during the marriage. That holds no matter whose name is on the account or title. The date of marriage opens that window.
The date of separation closes it. Family Code section 70 defines it as "the date that a complete and final break in the marital relationship has occurred." That break is shown by both of the following: 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 in deciding when the break happened. Between those two dates, earnings and acquisitions are generally community property. Before the marriage date or after the separation date, they are generally separate property.
The marriage date that counts is the date of a legally valid marriage. Under Family Code section 300, consent alone does not make a marriage. Consent must be followed by a license and solemnization, with limited exceptions. A commitment ceremony with no license, however meaningful, does not by itself set a date of marriage. A marriage performed elsewhere is treated differently. Family Code section 308 provides that "a marriage contracted outside this state that would be valid by laws of the jurisdiction in which the marriage was contracted is valid in California." For a valid out-of-state marriage, the starting point is the date of that marriage.
The marriage date also matters for spousal support. Under Family Code section 4336, a marriage of ten years or more is presumed to be a marriage of long duration, measured "from the date of marriage to the date of separation." The support section below covers why that marker matters.
One date people often confuse with the marriage date is the six-month waiting period. Family Code section 2339 provides that no judgment of dissolution is final until six months have passed from the date of service of the summons and petition or the respondent's appearance, whichever comes first. The court may extend that period for good cause. That clock runs from service or appearance, not from the marriage date. It sets the earliest point the marital status can end. It does not set the property or support period. The general divorce process for same-sex couples explains where service fits in a case.
The Proposition 8 Gap and What It Means for Your Marriage Date
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 the U.S. Supreme Court decided Hollingsworth v. Perry on June 26, 2013.
Hollingsworth is often described as the case that brought marriage back to California, but the Court's actual holding was narrower. The Court decided standing only. It held that the petitioners did not have standing to appeal the District Court's order, and it vacated and remanded the Ninth Circuit's judgment. The ruling did not itself declare a right to marry. Two years later, on June 26, 2015, Obergefell v. Hodges established marriage equality nationwide. That ruling is the federal floor for recognition of same-sex marriages.
For a divorcing couple, these dates sort into a few patterns:
- Married in California between June 16, 2008 and November 2008. California began licensing same-sex marriages on June 16, 2008, when In re Marriage Cases took effect, and stopped when Proposition 8 passed on November 4, 2008. A marriage licensed and solemnized in that window is a California marriage, and the date of marriage is the date of that ceremony. (The February-March 2004 San Francisco licenses issued before that ruling were voided in Lockyer v. City and County of San Francisco and did not create a marriage.)
- Held a ceremony in California during the gap. California was not issuing marriages to same-sex couples then, so that ceremony did not create a California marriage. Any legal effect it may have, including under the putative spouse rules below, depends closely on the facts.
- Married in another state during the gap. Section 308 now recognizes a marriage valid where it was performed. How California treated such a marriage during the gap itself, and how that history affects a particular case, is a question to take carefully against the specific timeline rather than assume.
For a fuller history, the explainer on gay marriage in California covers the milestones in more detail. For divorce purposes, the key question is narrower: which ceremony, in which place, created a marriage the law recognizes.
When a Domestic Partnership Came First: How California Law Treats the Two Relationships
Family Code section 297 describes domestic partners as "two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring." A registered domestic partnership is created when both people file a Declaration of Domestic Partnership with the Secretary of State and meet the statute's requirements. Those requirements include that neither person is married to or partnered with someone else, that both are at least 18 (with a stated exception), and that both are capable of consenting.
Under AB 205 (Stats. 2003, ch. 421), from January 1, 2005, registered domestic partners have the rights and duties of spouses, whenever they registered. Family Code section 297.5(a) now states that registered domestic partners "shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law... as are granted to and imposed upon spouses." Section 297.5(d) adds that their rights and obligations toward a child of either of them are the same as those of spouses. That matters greatly for a non-biological parent's rights.
For property and support, section 297.5(k)(1) provides that any reference to "the date of a marriage" is deemed to refer to the date the partnership was registered with the state. That covers community property, responsibility for debts to third parties, the right to seek support after dissolution, and other ownership questions between the partners. The registration date anchors the partnership's community property period. Assets and debts built up after registration can therefore be community property of the partnership, even before any wedding. Section 297.5(k)(2) adds a narrow rule about certain agreements for partnerships registered before January 1, 2005, so for those earlier partnerships the analysis does not always follow the general rule alone. A pre- or post-nuptial agreement between the partners can also affect the analysis.
When the same two people later marry each other, California does not treat the partnership as turning into the marriage. Family Code section 299(e) provides that partners "who are also married to one another may petition the court to dissolve both their domestic partnership and their marriage in a single proceeding." These are two legal relationships that can be ended together, each with its own anchor date. How the court handles the overlapping years in a given case is one of the more technical parts of these divorces. Couples who registered years before marrying often find this part of the law unexpected.
Putative Spouse Status and What Happens When a Marriage Was Not Legally Valid
Family Code section 2251 addresses a marriage later found to be void or voidable. A void marriage is invalid from the start. A voidable marriage is one that can be set aside. If the court finds that either party, or both, "believed in good faith that the marriage was valid," the court shall declare that party or parties to have the status of a putative spouse. A putative spouse is a person who honestly believed they were validly married, even though the marriage was not legally valid.
If property division is at issue, the court then divides "that property acquired during the union that would have been community property or quasi-community property if the union had not been void or voidable." It does so only on the request of a party declared a putative spouse. That property is called quasi-marital property: property the law divides as though it were community property, because a good-faith spouse believed the marriage was real. If the court expressly reserves jurisdiction, it may divide the property after the judgment.
Good faith is the operative test, and it is decided on the facts. The court looks at what the person believed and why. For same-sex couples, the doctrine may come up where a ceremony took place during the Proposition 8 gap. It may also come up where a couple's marriage was not recognized in California at the time it was performed. Neither situation guarantees putative spouse status. A court may or may not find good faith on a given record.
Putative spouse status does not create a valid marriage. It is a remedy for dividing property fairly when a marriage the parties relied on turns out not to exist in law.
How California Courts Determine the Date of Marriage When the Record Is Unclear
Paperwork usually answers the question. Under Family Code section 300(b), the document issued by the county clerk is a marriage license until it is registered with the county recorder. At that point it becomes a marriage certificate. A California marriage certificate is the primary record of the date of marriage.
For a marriage performed in another state or country, that jurisdiction's marriage certificate is the starting point. Whether California recognizes the marriage is a separate legal question, measured against section 308 and the history above. For a domestic partnership, Family Code section 298.5(b) provides that the Secretary of State registers the Declaration of Domestic Partnership and returns a Certificate of Registered Domestic Partnership to the partners. That certificate shows the registration date.
When records are missing, inconsistent, or disputed, the court weighs the evidence the parties present. Disputes over the date of separation are common too, since section 70 directs the court to consider all relevant evidence on that question.
The dissolution petition asks for the date of marriage. The date entered there needs to match the parties' actual legal marriage date. An error can shift the community property period by months or years. Couples with a partnership followed by a marriage, or a marriage from a period of uncertain recognition, often have more than one candidate date. Their timeline usually needs a careful review before anything is filed. The overview of a same-sex divorce lawyer's role describes how that review fits into a case.
Length of Marriage, Spousal Support, and the Ten-Year Marker
Under Family Code section 4336(a), unless the parties agree otherwise in writing or a court order ends support, the court "retains jurisdiction indefinitely" in a marriage of long duration. Retaining jurisdiction over spousal support means the court keeps the power to award, change, or extend support later, rather than losing that power once a set period ends. Section 4336(b) presumes that a marriage of ten years or more, from the date of marriage to the date of separation, is of long duration. The court may consider periods of separation during the marriage. It may also find that a marriage shorter than ten years is of long duration.
Family Code section 4320 lists what the court considers in setting support. The factors include:
- each party's earning capacity and the marital standard of living
- contributions to the other's education or career
- the paying party's ability to pay
- each party's needs, obligations and assets
- the duration of the marriage
- the effect of employment on dependent children
- age and health
- documented domestic violence
- tax consequences
- the balance of hardships
Section 4320 also sets the goal that the supported party become self-supporting within a reasonable time. Except in a marriage of long duration, a "reasonable period of time" is generally one-half the length of the marriage.
A domestic partnership registered first complicates the arithmetic. Take a couple who registered in 2004 and married in 2015. Their combined relationship may exceed ten years even if the marriage alone does not. Section 297.5(k) ties the partnership's support rights to its registration date. Whether a court will combine the partnership years with the marriage years for spousal support is not a settled question, though. The answer depends on the facts and on how the dissolution of both relationships is structured. For a partner who supported the household through years of registration and marriage, this is often where the stakes feel highest. Retirement savings follow similar timing questions, covered in the guide to retirement accounts in same-sex divorce.
If You'd Like to Talk Through Your Relationship Timeline
A date that looks simple on a petition can decide years of property and support when a relationship spans a domestic partnership, a marriage, and the Proposition 8 years. A consultation is the place to lay out that full timeline: when you registered, where and when you married, any ceremony along the way, and when the relationship ended. An attorney can then explain which dates are likely to anchor each part of the case. The firm practises California family law only.
To talk through how your marriage and partnership dates apply to your situation, call LGBTDivorceLaw.com at (866) 343-4226 for a confidential consultation.