An uncontested same-sex divorce in California is one where both spouses agree on every issue: property, debts, support and, if there are children, custody and parenting time. It follows the same Family Code rules as any California divorce. The court reviews the written agreement, and the divorce cannot become final until six months after service.
Most people facing this question are spouses or registered domestic partners who expect the split to be calm. They may have talked it through at the kitchen table already. What they are often unsure about is whether "we agree" is enough. Their relationship history may not fit a simple timeline. There may be a domestic partnership that came before a marriage, a wedding in another state, or a child whose legal parentage was never fully settled. Those details decide whether an uncontested divorce works smoothly, so this guide walks through each one in plain terms.
What 'Uncontested' Means Under California Divorce Law
Family Code section 2310 lets a California divorce rest on "irreconcilable differences, which have caused the irremediable breakdown of the marriage." The only other ground is permanent legal incapacity to make decisions. Neither spouse has to prove the other did anything wrong. The court does not ask who left, who was unfaithful, or whose fault the breakdown was.
"Uncontested" is not a separate legal ground or a special form of divorce. It describes a case where the spouses have reached full agreement on every issue the court must decide. That usually means dividing property and debts, deciding spousal support, and, where there are children, settling parentage, legal and physical custody, visitation and child support. If even one issue is still open, the case is not fully uncontested.
The same Family Code provisions govern same-sex marriages and opposite-sex marriages. There is no separate track. The differences that matter for same-sex couples come from the facts: when the relationship began, whether a domestic partnership was registered, where the marriage took place, and how each child came to have two legal parents. Those facts shape how the shared rules apply.
Uncontested divorce is also different from summary dissolution. Summary dissolution is a separate, simplified procedure with its own strict eligibility limits. Many agreeing couples do not qualify for it, and they file a standard divorce in which they simply agree. A case can also start out uncontested and become contested later if the agreement falls apart. The label describes where the case stands, and that can change. The basic steps of filing are covered in more detail in our overview of the same-sex divorce process in California.
California Residency and Registration Requirements Before You File
Family Code section 2320(a) sets the general residency rule. One spouse must have lived in California for six months, and in the county where the case is filed for three months, immediately before filing the petition. Only one spouse needs to meet it.
Cal. Fam. Code § 2320(b) creates an exception that exists for same-sex couples in particular. A California court may enter a judgment of dissolution, nullity or legal separation of a same-sex marriage even if neither spouse lives in California when the case is filed, as long as two things are true. First, the marriage was entered in California. Second, neither spouse lives in a place that will dissolve the marriage. If that place does not recognize the marriage, the law presumes it will not dissolve it, though that presumption can be challenged. Only for a same-sex marriage that meets both of these conditions, the case belongs in the superior court of the county where the couple married, and California law governs it.
This matters because of the way same-sex marriage developed in California. In November 2008, voters approved Proposition 8, which provided 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 addressed standing only. The Court 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. During those years, some couples married in other states or countries, and some relied on a domestic partnership instead. As a result, a couple may now hold a California marriage from before November 2008, a marriage from after June 2013, a marriage from another jurisdiction, a registered domestic partnership, or more than one of these.
For registered domestic partners who have since moved out of California, the right court can depend on where each partner now lives and what kind of relationship they hold. The text of section 2320(b) speaks to marriages entered in California. A partnership-only situation outside the state is a fact-specific question rather than an automatic answer.
The Six-Month Waiting Period and What It Does — and Does Not — Do
Family Code section 2339 sets the waiting period:
"no judgment of dissolution is final for the purpose of terminating the marriage relationship of the parties 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."
The court may also extend that six months for good cause. The respondent is the spouse who did not file.
Couples often misread this rule. It does not require anyone to wait six months before filing. Filing and serving the petition starts the clock. The six months is also a minimum, not a promise. Many cases take longer because paperwork is still being finished or because of the court's workload.
So how quickly can an uncontested divorce go through? When the agreement is signed, the financial disclosures are complete and the judgment paperwork is filed early, a case can sometimes finish close to the six-month mark. Even when a case goes forward without both spouses in court, Family Code section 2336 still requires proof by sworn written statement. Where there are minor children, that statement must estimate each spouse's monthly gross income. Missing details slow things down.
The waiting period is also separate from the date of separation. The date of separation is the point when the marriage, in the legal sense, ended for property purposes. It helps decide which earnings and assets belong to both spouses and which belong to one. The six-month clock only controls when the marital status can end. It does not affect who owns what.
Community Property and Asset Division in a Same-Sex Marriage
Family Code section 760 states the core rule: except as otherwise provided by statute, all property acquired by a married person during the marriage while living in California is community property. Community property means property owned equally by both spouses. Under section 2550, the court divides the community estate equally unless the spouses agree otherwise in writing or by oral agreement in open court.
The marriage date usually marks when the community begins, and for same-sex couples that date may not be obvious. It could be a California wedding from before November 2008, one from after June 2013, or a marriage from another state that California recognizes. Couples together for decades before they could marry often have homes, savings and retirement accounts that grew both before and after their legal start date. Sorting those periods takes careful work, especially with pensions, which are discussed further in our article on dividing retirement accounts in divorce.
Domestic partnership adds another layer. Under AB 205 (Stats. 2003, ch. 421), from January 1, 2005, registered domestic partners have the rights and duties of spouses, whenever they registered. In practice, property acquired during a registered domestic partnership is treated as community property when the partnership is dissolved. Where a couple registered a partnership and later married each other, Family Code section 299(e) treats them as two relationships that one court can dissolve together.
Separate property is not divided. Separate property generally includes what a spouse owned before the community began and what a spouse received by gift or inheritance. In an uncontested case, the spouses put their division into a written marital settlement agreement. That is the signed contract that lists who keeps what and who pays which debts. The court makes it part of the final judgment. A clear agreement names each item of separate property so there is no confusion later. Any earlier prenuptial or postnuptial agreement may also shape what the settlement covers.
Parentage, Custody, and Support When Children Are Involved
Parentage comes first. Before a divorce judgment can include custody and support orders for both spouses, each spouse must be a legal parent of the child. For many same-sex families, this is the issue that most needs a careful look. It can be the hardest part of an otherwise friendly divorce to talk about.
California law has several routes to legal parentage. Family Code section 7611 sets out presumptions. A presumption is a rule that treats someone as a parent unless it is successfully challenged. One applies when the parent was married to the child's birth mother and the child was born during the marriage. Another applies when a person takes the child into their home and openly holds the child out as their own. Family Code section 7613(a) covers assisted reproduction. When a woman conceives with donated sperm or eggs with another intended parent's consent, that intended parent is treated in law as a natural parent. The consent is to be in writing and signed by both. Even without a written consent, a court may find consent if there is clear and convincing evidence of an oral agreement before conception that both would be parents. Voluntary declarations of parentage and court judgments are other routes. The position of a non-biological parent in particular is explored separately on this site.
Some families involve a known donor or a surrogate. Under SB 274 (Stats. 2013, ch. 564), a California court may find that a child has more than two parents when doing so serves the child's best interest.
If one spouse is not a legal parent, the divorce judgment cannot create parental rights for that spouse. A separate parentage case, or an adoption such as a stepparent adoption, would be the route. LGBTDivorceLaw.com does not take adoption matters, though general information on adoption for same-sex couples is available.
When both spouses are legal parents, the agreement must cover legal custody, physical custody, visitation and child support completely. The court will not approve an agreement that leaves any of these open. Child support starts from the statewide guideline formula in Family Code section 4055. That formula weighs each parent's net monthly income and the share of time each parent has the children. Parents may agree to a different amount only when specific legal conditions are met.
Dissolving a Registered Domestic Partnership Alongside — or Instead of — a Marriage
Family Code section 299 governs ending a registered domestic partnership. In most respects, the court process mirrors divorce. The same property, support and custody rules apply.
Section 299(e) addresses couples who registered as domestic partners and later married each other. They may ask the court to dissolve both the partnership and the marriage in a single proceeding. The partnership is not absorbed into the marriage. The two relationships continue side by side until a court ends both of them.
Section 299(a) offers a simpler, out-of-court option for some partnerships: filing a Notice of Termination of Domestic Partnership with the Secretary of State. It is available only if every condition exists at the time of filing, including:
- Both partners sign the notice.
- There are no children of the relationship, born before or after registration or adopted after registration, and neither partner knows of a pregnancy.
- The partnership has lasted no more than five years.
- Neither partner owns any interest in real property anywhere, except a qualifying residential lease with no option to buy that ends within one year of filing.
- Unpaid debts incurred after registration stay under a limit referenced in Family Code section 299(a), not counting car loans.
If the partnership does not meet every condition, the dissolution goes through the courts on the same track as a divorce. The six-month waiting period in section 2339 applies there too.
What Can Go Wrong: When an Uncontested Case Becomes Contested
The main disadvantage of an uncontested divorce is that a quick agreement can rest on incomplete information. If one spouse signs without seeing the full financial picture, or without knowing what the law would give them, the agreement may later be challenged.
Family Code section 721 says spouses owe each other "a duty of the highest good faith and fair dealing," and neither may take unfair advantage of the other. That duty includes giving, on request, "true and full information of all things affecting any transaction that concerns the community property." Agreement between spouses does not replace this duty of disclosure.
Family Code section 2122 lists the grounds for setting aside a judgment, or part of one, along with the time limits:
- Actual fraud, within one year after it was discovered or should have been discovered.
- Perjury in the financial disclosures or income and expense statement, within one year after discovery.
- Duress, within two years after the judgment was entered.
- Mental incapacity, within two years after the judgment was entered.
- Mistake in an agreed or uncontested judgment, within one year after entry.
- Failure to meet disclosure requirements, within one year after discovery.
Agreement can also simply break down. When spouses stop agreeing on even one issue, the case becomes contested and moves forward on that basis. Time and costs already spent are not refunded.
California does not require a lawyer for an uncontested divorce. Still, a long relationship that predates marriage, a partnership-plus-marriage history, or a question about a parent's legal status can make a marital settlement agreement harder to get right than it first looks. If there has been same-sex domestic violence, safety and fairness raise separate concerns. For anyone weighing whether to sign, these issues tend to matter most.
If You'd Like to Talk Through Your Situation
An uncontested divorce often depends on facts that are easy to overlook. These include when the community began, whether a partnership and a marriage both need to be dissolved, and whether each parent's legal status is secure. A conversation can look at the dates of registration and marriage, how each child joined the family, and what the draft agreement says about property and support. LGBTDivorceLaw.com practises California family law only and does not take adoption matters, but it does handle the divorce, custody and parentage questions that often sit next to them.
To talk through how these rules apply to your divorce or parentage question, call LGBTDivorceLaw.com at (866) 343-4226 for a confidential consultation.