California has long been a pioneer of rights for same-sex couples. As the state pushed norms forward, those who oppose LGBTQ+ rights pushed back, sometimes succeeding in the short term. Developments in rules on domestic partnerships, marriage, and related legal considerations have made for a winding road. They have also complicated same-sex divorce.
This guide explores what rights same-sex couples have, how we got there, and what that path means for property and support claims when couples end their marriages or partnerships.
Modern California law guarantees the same rights to same-sex and opposite-sex partners in marriages and domestic partnerships. Yet, it took a winding road to arrive here.
California Domestic Partnership History
Before California made same-sex marriage legal, it pioneered same-sex couples’ rights through domestic partnerships. While the road to LGBTQ+ rights started long ago, California domestic partnership history begins in 1979, when a Berkeley city employee wrote a letter proposing that the city provide benefits similar to those offered to opposite-sex spouses to his male partner.
Early Domestic Partnership Adoption
Following those letters, during the early AIDS epidemic, LGBTQ+ individuals pushed for practical benefits for their partners, like healthcare and hospital visitation rights. In 1982, San Francisco passed protections at the city level, but the mayor vetoed them.
Yet, in 1984, Berkeley adopted a policy offering domestic partner benefits to city and school district employees. In 1985, West Hollywood opened a domestic partnership registry. As support grew, advocates turned to the state legislature (Traiman, 2008).
Domestic Partner Registration
Throughout the 1990s, advocates pushed for legislation to create a statewide domestic partner registry offering many of the same basic rights of marriage. After several attempts, the California legislature officially created a domestic partner registry in 1999. Registering as domestic partners guaranteed some, but not all, of the benefits of marriage. The law only allowed opposite-sex couples to use the registry if both partners were over 62 years old.
Expansion of Rights and Coverage
Over time, advocates made their cases, more supporters joined the cause, and California expanded benefits bit by bit. Finally, the California Domestic Partner Rights and Responsibilities Act of 2003 granted same-sex domestic partners the same rights as opposite-sex spouses, with limited exceptions. In 2019, the legislature eliminated the provisions limiting opposite-sex registration by age, making domestic partnerships available regardless of partner gender.
The History of Same-Sex Marriage in California
Since 2013, California has offered same-sex marriage on equivalent terms to opposite-sex marriage, after persistent advocacy from supporters spanning decades. As support for recognition of same-sex partnerships grew, so did support for recognition of same-sex marriage in California.
Early LGBTQ+ Rights
In 1971, the California legislature modified the state law definition of marriage to use gender-neutral language. Significantly, at that time, California law criminalized sodomy and oral sex. As a result, advocating for LGBTQ+ rights could place individuals at risk of criminal prosecution.
Thankfully, the legislature eliminated the laws criminalizing sodomy and oral sex in 1975. Then, in 1976, a same-sex couple requested a marriage license from Orange County. Partially in response, in 1977, the legislature amended the definition of marriage to apply only to opposite-sex couples specifically.
Proposition 22
In the midst of forward movement on domestic partnerships, a state senator tried unsuccessfully to get the legislature to pass a law forbidding same-sex marriage twice in the 1990s. After that, anti-equality advocates brought Proposition 22 to the California public for a vote. Proposition 22 again amended the California Family Code to state that only opposite-sex marriages were legally valid. Approximately 61.35% of Californians voted in support of Proposition 22.
Legal Marriage (2008)
The California legislature passed a law legalizing same-sex marriage in 2005, but then-governor Arnold Schwarzenegger vetoed it. He vetoed a second attempt in 2007, stating that California courts should first resolve the constitutionality of Proposition 22.
On May 15, 2008, the California Supreme Court declared Proposition 22 violated the California Constitution. As a result, same-sex marriage became legal in the state.
Passage of Proposition 8
In response to the growing support for marriage equality, anti-equality groups put forward Proposition 8 to enshrine marriage as a right belonging only to opposite-sex couples in the California Constitution. The California public voted for Proposition 8, 52.47% to 47.53%. All marriages performed between the California court opinion legalizing same-sex marriage and Proposition 8 remained legally valid.
Invalidation of Proposition 8
LGBTQ+ rights advocates challenged Proposition 8’s constitutionality in state court. The California Supreme Court upheld it. The same day as that ruling, advocates filed a lawsuit in federal court arguing that Proposition 8 violated the Equal Protection and Due Process Clauses of the U.S. Constitution. The judge agreed, declaring it unconstitutional.
Anti-equality groups appealed to the Ninth Circuit Court of Appeals, which directed parties to explain how they had standing—a crucial requirement that the person who brings a claim has a genuine stake in a lawsuit’s outcome. The Ninth Circuit moved past the standing issue and upheld the ruling.
In Hollingsworth v. Perry, 570 U.S. 693 (2013), anti-equality groups appealed to the U.S. Supreme Court, which concluded they lacked standing. Limiting marriage to opposite-sex partners did not directly affect them—it affected same-sex couples. As a result, California began issuing marriage licenses to same-sex couples again.
Marriage Equality
In 2014, the California Legislature officially eliminated gendered distinctions in the definition of marriage. Yet, California had not formally repealed Proposition 8.
After polarization grew in the U.S. Supreme Court in the 2010s, many Californians grew concerned about its commitment to protecting minority populations. As a result, California passed Proposition 3 in 2024, repealing Proposition 8 and enshrining marriage equality in the California Constitution. Voters approved the measure 62.6% to 37.4%, a striking reversal of Proposition 22’s outcome 24 years earlier (Echelman, 2024).
California Law on Property Division
According to California Family Code (FAM) § 2550 (2024), California courts must divide community property equally, or as close to equally as possible, upon divorce or separation. FAM § 2551 requires that before courts can divide property, they must determine what property is community, what is separate, and what requires further investigation.
Community vs. Separate Property (and Debt)
Under FAM § 760, community property is property that either spouse gets during the marriage that is not separate. FAM § 770 describes separate property as that obtained:
- Before the marriage,
- After the date of separation,
- Through a gift to one spouse, or
- Through inheritance.
Property clearly identified as separate in a premarital (prenuptial) agreement is also separate. Debts follow the same general rules as property. FAM § 910 declares that debts incurred during marriage are generally community debts that a couple must divide. Notably, debts incurred before marriage but still owed during marriage can become community, too, if spouses intermingle funds.
Start and End of the Community
Property acquired on or after the day a couple marries is community property. Determining when the community ends is often more complicated, even in opposite-sex marriages. FAM § 771 states that generally, the community ends, making property that either spouse acquires separate, starting from the date of separation. That date occurs when at least one partner genuinely resolves to divorce.
Partners may disagree on when, exactly, that date occurred. Practical realities, such as one partner finding a new place to live, can also complicate the timeline, especially when partners are jointly liable for property-related debts, such as mortgages or other loans.
In Between Community and Separate Status
Complications also arise in determining whether property is community or separate when there is:
- Commingling of separate and community funds,
- A marital agreement,
- Improvements to property, or
- Intentional waste or misuse.
Business interests can be particularly nuanced, especially when these elements come into play.
Property Valuation
Once courts determine which property to divide, they must divide it equally. To do so, the approximate fair market value of every asset and debt is needed. Some assets, like bank accounts, have a readily determinable fair market value.
Others, like the following, present unique valuation challenges:
- Retirement accounts,
- Restricted stock units, and
- Business ownership interests.
Couples often need to consult one or more appraisers to determine value.
California Law on Spousal Support (Alimony)
FAM § 4320 determines under what circumstances a court will award spousal support and in what amount, depending on:
- Each partner’s earning capacity, marketable skills, and ability to gain skills;
- Contributions to the other spouse’s career or education;
- The length of the marriage;
- The paying spouse’s ability to pay;
- The marital standard of living;
- Needs of minor children;
- Age and health of each spouse;
- Tax consequences; and
- Whether the couple has a history of domestic violence.
Courts may also consider other equitable factors.
Unique Complications During Same-Sex Divorce
Given the winding road to marriage equality in California, couples who have been together since before 2013 often experience unique challenges in same-sex divorce. Many same-sex partners were in committed relationships long before legal recognition of their relationships, and throughout various legal and social changes.
Establishing the Start of the Marital Relationship
California law allows judges to consider practicality in same-sex divorce property division and spousal support. Judges may measure from when the couple started to live together or act similarly to a married couple. However, without a clear indicator like the date of marriage, partners have more room to disagree.
Determining when the community began can be challenging; similarly, spousal support ties to when the marriage started, which can be much harder to determine.
Alimony and Women’s Liberation
Lawmakers created alimony to provide for women after divorce in a world that seriously limited women’s rights. Over time, the norms underlying those laws changed, and alimony became available to men, too. As the world has continued to change, many states have cut back on alimony based on the idea that a woman should be able to support herself, despite statistics that still show pay inequity between men and women.
When it comes to same-sex divorce, alimony loses even more of its social context. Same-sex couples often have more similar earning capacities and overlap in education and training, which can make an award of alimony less likely.
Same-Sex Divorce and Separation
Marriage equality for same-sex couples has been a long, hard-fought road. The changes to laws affecting same-sex couples’ rights make same-sex divorce and separation more complicated, often requiring more fact-intensive consideration. The Stratte Firm has helped many same-sex couples work through divorce on their terms, finding ways to adapt to the incremental progress in same-sex couples’ rights in California. We understand the unique challenges you may face and will work with you to help protect your interests every step of the way.
Resources:
Hollingsworth v. Perry, 570 U.S. 693 (2013), link.
California Family Code § 760, link.
California Family Code § 770, link.
California Family Code § 771, link.
California Family Code § 910, link.
California Family Code § 2550, link.
California Family Code § 2551, link.
California Family Code § 4320, link.
Domestic Partner Registry, Assembly Bill No. 26, California Statutes of 1999, link.
California Domestic Partner Rights and Responsibilities Act of 2003, link.
Echelman, Adam, Same-sex marriage gains constitutional protections as California voters approve Prop. 3, (Nov. 5, 2024) link.
Leland Traiman, A Brief History of Domestic Partnerships, The Gay & Lesbian Review Worldwide (2008), link.
Lambda Legal, Hollingsworth v. Perry (formerly known as Perry v. Brown and Perry v. Schwarzenegger), link.
