New Residency Requirement Laws for Same Sex Couples

Posted on January 15th, 2012

Residency Requirement Law Altered for Non-Resident Same-Sex Couples Effective January 1, 2012

Generally, in order to obtain a divorce in California, one spouse must be a resident of the State of California for six months and of the county where the proceeding is filed for three months preceding the filing of the petition.  Either party may file for dissolution (divorce) of their marriage as long as the petitioner satisfies the requirements, or the respondent satisfies the requirements and also wants a divorce.

The six-months/three-months residence prerequisite applies only to marriage dissolutions.  There is no residence requirement for filing for legal separation.  Therefore, if neither spouse satisfies the residency requirement but wish to obtain a divorce in California, a spouse can file for legal separation and later amend the petition.  This tactic could be used if one party intends to fulfill the six-months/three-months prerequisite eventually but would like to start the dissolution process immediately.  Once the requirement is satisfied, the spouse may amend the petition or the response to request dissolution instead of legal separation.

There is no minimum residence prerequisite to dissolve a domestic partnership that was established in California.  Domestic partners who register their partnership with the California Secretary of State thereby consent to California jurisdiction to end the partnership as well.   However, the residency requirements still apply in California if the domestic partnership was established outside of California.

For a brief period in 2008, California granted marriage licenses to same-sex couples.  Since November of 2008, California has banned such licenses. A problem arose when these married same-sex couples moved out of California to states that did not recognize their marriage and therefore would not grant them a divorce.   The couple no longer satisfied the California residency requirements and could not obtain a divorce in the state where they currently resided.

In 2011, the Domestic Partnership Equality Act was passed effective January 1, 2012.  The Act authorizes a judgment for dissolution or legal separation of a marriage between persons of the same sex to be entered if the marriage was entered in California and neither party resides in a state that will dissolve the marriage.  This law allows same-sex marital partners who are non-residents who were married in California to obtain a divorce.

When contemplating a divorce or legal separation, it is imperative to consider where to file the petition. Dissolution cases involve difficult and life changing decisions. Because of the complexity of this issue, it is best to hire an attorney who is experienced in such matters. The attorneys at Wilkinson and Finkbeiner, LLP are Certified Family Law Specialists and have successfully handled a variety of dissolution cases and can assist you with your matter. Please call today at (619) 284-4113 for your confidential initial consult. You can also send us an email inquiry.