Often, yes. A California divorce is available if either spouse has lived in California for six months and in the filing county for three months. A same-sex couple who married in California can also divorce there when neither spouse lives in California, as long as neither lives somewhere that will dissolve the marriage.
Most people facing this question have already left. A job, a family need or the end of the relationship took one or both spouses to another state, and the marriage, and sometimes a domestic partnership registered years before it, stayed behind in California. Now the question is practical and a little unsettling. Which court still has power over this relationship? And will the new state treat a same-sex marriage or a California partnership the way California does?
This article walks through the residency rule, the special rule for same-sex marriages, the six-month waiting period, property and support, custody across state lines, and why a registered domestic partnership can need its own attention.
California's Residency Requirement: The Foundational Rule
Family Code section 2320(a) sets the general rule. A judgment of dissolution "may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition."
Three features of that rule matter most.
First, only one spouse has to qualify. It can be the person who files, called the petitioner, or the person who receives the papers, called the respondent.
Second, the clock looks backward from the filing date. The six months in California and the three months in the county are the months immediately before the petition is filed.
Third, residence here is generally understood as the place a person actually lives and intends to stay. A brief visit or a short work assignment does not usually count.
The requirement is a threshold for the court's power, not a formality. Without it, or without the exception discussed below, a California court cannot grant the dissolution. The California Courts Self-Help Center on divorce describes the same residency rule for the general public.
The rule is the same for every married couple. Nothing in section 2320(a) turns on the spouses' genders. What makes same-sex couples' situations different is subdivision (b), which exists because not every state has always been willing to end a same-sex marriage. California also treats a marriage validly entered elsewhere as valid here under Family Code section 308. So a couple who married in another state and later moved to California can divorce here once the residency rule is met.
When You Have Moved Away but Your Spouse Still Lives in California
The simplest out-of-state situation is this one. One spouse moved away, and the other stayed in California.
If the spouse who stayed has lived in California for six months and in their county for three months, section 2320(a) is satisfied. The spouse who moved can file as the petitioner. The filing generally belongs in the county where the California spouse lives, because that spouse is the one meeting the county requirement. The petitioner's new home state does not enter into it.
There is an important limit, though. A California court's power to end the marriage itself, sometimes called status jurisdiction, is separate from its power to make financial orders that bind each person. When the petitioner files in California, the petitioner has chosen this court. The harder questions usually concern property or income located in the petitioner's new state, and how orders about them will be carried out there.
The practical side deserves a plain mention. A petitioner living elsewhere is still taking part in a California case. Hearings, paperwork and any settlement happen under California procedure. Some people arrange to appear themselves, and some have a California lawyer handle the case.
This pattern is common in LGBTQ families for a historical reason. Many couples married or registered in California because their home state would not let them. When the relationship ends, a California court may be the only one with a clear path to dissolve it. The general same-sex divorce process is covered separately on this site.
When Both Spouses Have Left California
For most married couples, the rule here is simple. If neither spouse meets the six-month and three-month requirement, section 2320(a) generally bars a California judgment until one of them moves back and the clock runs again.
Same-sex spouses who married in California have a second path. Section 2320(b) allows a judgment of dissolution, nullity or legal separation "even if neither spouse is a resident of, or maintains a domicile in, this state" when two conditions are met:
- "The marriage was entered in California."
- "Neither party to the marriage resides in a jurisdiction that will dissolve the marriage. If the jurisdiction does not recognize the marriage, there shall be a rebuttable presumption that the jurisdiction will not dissolve the marriage."
A rebuttable presumption is a starting assumption that holds unless someone proves otherwise. Under this exception, the case is filed in the superior court of the county where the couple married, not the county where either spouse once lived. The case is decided under California law.
This rule is narrow. If either spouse lives in a state that will dissolve the marriage, section 2320(b) does not apply. In that case the realistic options are to file in that state or for one spouse to re-establish California residence.
Filing in the new state raises another issue. Courts generally recognize what is called a divisible divorce. One court may end the marriage as a matter of status without having authority over every financial question. A court in a new state might dissolve the marriage but have limited reach over California property. It also may have no way to end a California registered domestic partnership. A partnership is a separate legal relationship from the marriage, as discussed below. A couple can leave one state's court thinking everything is finished when part of the relationship is still on the books in California.
California's Six-Month Waiting Period and What It Means for Out-of-State Spouses
Family Code section 2339(a) adds a different six-month clock. A dissolution judgment is not final "until six months have expired from the date of service of a copy of summons and petition or the date of appearance of the respondent, whichever occurs first." Under subdivision (b), the court may extend that period for good cause.
People often mix up these two rules. Residency under section 2320 is about the months before filing. The waiting period under section 2339 is about the months after the respondent is served or appears. The waiting period does not require anyone to live in California. It runs whether the spouses are in San Diego, in another state or one in each.
So a petitioner who left California and files where the other spouse still lives still waits out the section 2339 period before the marriage legally ends. A case filed under section 2320(b) also runs through California procedure, so the same timing rule generally applies.
Readers searching for a "10-year rule" are usually asking about something else entirely. Family Code section 4336 provides that in a marriage "of long duration," the court generally keeps jurisdiction over spousal support indefinitely, unless the parties agree otherwise in writing or a court order ends support. A marriage of ten years or more, "from the date of marriage to the date of separation," is presumed to be of long duration. The court may consider periods of separation during the marriage, and a shorter marriage can still qualify. Section 4336 is a support rule. It does not affect who can file or when.
For registered partners, section 297.5(k)(1) provides that, for support and property purposes, a reference to the date of marriage is treated as the date the partnership was registered with the state. A couple whose registration came years before their wedding may find that the registration date shapes how long the relationship is considered to be.
Property Division and Personal Jurisdiction: What the California Court Can and Cannot Do
A California court can generally end a marriage even when it cannot make money orders against a spouse who lives elsewhere. Dividing property, ordering spousal support or entering other binding financial orders generally requires personal jurisdiction over the respondent. Personal jurisdiction is the court's authority over that individual. It is commonly established in one of three ways:
- the respondent is served with the papers while in California,
- the respondent voluntarily appears in the case or consents, or
- the respondent has enough connection to California, often called minimum contacts, to make the court's authority fair.
When the respondent is reachable, California's property rules apply. Family Code section 760 provides that, except as otherwise provided by statute, property "acquired by a married person during the marriage while domiciled in this state is community property." It is community property wherever it is located. Community property is property owned equally by both spouses.
Property bought while the couple lived elsewhere is not left out. Family Code section 125 defines quasi-community property as property acquired "by either spouse while domiciled elsewhere which would have been community property if the spouse who acquired the property had been domiciled in this state." It also covers property received in exchange for such property. On dissolution, it is generally divided along with community property. Retirement savings often fall into these categories, and retirement accounts in divorce have their own rules.
Registered partnerships follow the same framework. Family Code section 297.5(a) gives registered domestic partners "the same rights, protections, and benefits" and the same "responsibilities, obligations, and duties" as spouses. That includes community property. AB 205 (Stats. 2003, ch. 421) brought these rights into force from January 1, 2005, for all registered partners, whenever they registered. A couple's property history may therefore span a partnership period, a marriage period and the time between them. Couples who planned for this in writing will find that pre- and post-nuptial agreements can change the analysis.
Child Custody and the UCCJEA When Families Have Moved
Custody follows its own jurisdiction law. California has adopted the Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA, in Family Code sections 3400 through 3465. Most states have adopted the same uniform act. It decides which state's court may make the first custody order and which may later change it.
The UCCJEA gives priority to the child's "home state." That is generally the state where the child lived with a parent for at least six consecutive months immediately before the custody case began. If a child moved with one parent to another state and has lived there for six months or more, that state is likely the home state. This can be true even when the divorce itself is filed in California.
The two questions can split. A California court may dissolve the marriage and divide property while another state's court decides custody. California can decide custody when it is the home state. It can also decide custody when no other state has jurisdiction under the act's rules.
Families who have been through this often find that the hardest question is not custody at all but parentage. Parentage is the legal status of being a child's parent. In many LGBTQ families, it rests on something other than biology. It may rest on a California judgment, a voluntary declaration of parentage, a parentage presumption or consent to assisted reproduction. The UCCJEA decides which court hears custody. It does not change the parentage itself, but the parentage may need to be confirmed or addressed in California. This is especially important for non-biological parents in divorce. The broader topic of parental rights for same-sex couples is covered separately.
Registered Domestic Partnerships: A Separate Dissolution Requirement
Family Code section 299(e) states that "Parties to a registered domestic partnership who are also married to one another may petition the court to dissolve both their domestic partnership and their marriage in a single proceeding." The partnership and the marriage are two relationships. Marrying did not end the partnership. A judgment that addresses only the marriage can leave the partnership in place.
This matters for many couples because of timing. California allowed no new same-sex marriages from November 2008, when voters approved Proposition 8, until after Hollingsworth v. Perry was decided on June 26, 2013. Many couples registered first and married later, and some still hold both.
Out-of-state partners have one advantage. Section 299(d) allows dissolution, nullity or legal separation of a partnership registered in California to be filed in a California superior court "even if neither domestic partner is a resident of, or maintains a domicile in, the state." That rests on the consent the partners gave on the Declaration of Domestic Partnership form. The six-month and three-month rule of section 2320(a) does not limit this path for the partnership. Once filed, the case otherwise follows the same procedures and carries the same rights as a divorce.
A narrower route also exists. Under section 299(a), some couples can end a partnership by filing a Notice of Termination of Domestic Partnership with the Secretary of State. Both partners must sign it, and every listed condition must be met. These include no children of the relationship, a partnership of not more than five years, no real property beyond a qualifying lease, limits on debts and assets, a written property agreement and a waiver of support. The termination takes effect six months after filing unless a partner revokes it first.
This is where the gap described earlier closes. Some states do not recognize California partnerships and have no way to dissolve them. California's courts remain open to a partnership registered here, wherever the partners now live.
If You'd Like to Talk Through a Move Away From California
Cases like these often turn on a few dates and places. These include where and when the couple married or registered, where each spouse has lived since, where any children have spent the last six months, and where the property was acquired. A consultation is the place to line those facts up against sections 2320, 299 and the UCCJEA, to clarify which court may have authority over which part of the case based on the relevant dates and locations involved. The firm's practice is limited to California family law. Questions governed by another state's law belong with a lawyer licensed in that state.
To talk through how these rules apply to your relationship and your move, call LGBTDivorceLaw.com at (866) 343-4226 for a confidential consultation.