Before they could legally marry, many long-term same-sex couples thought of themselves as “married,” but if these couples did marry when they were able to and then got divorced, they learned that California law doesn’t think the same way.
For unmarried same-sex couples who had not registered with the state as domestic partners, all their years of living together before entering into a legal marriage can’t be considered by California family law courts for spousal support or community property purposes. And the same situation would apply to same-sex registered domestic partners as to their preregistration years of living together. There are, however, some ways these couples potentially can recapture those years.
Long-term couples who’ve only recently been able to marry can try one of these ideas to get some “credit” for those years or decades together when it comes to divorce:
- Ask the court to look at the equities of the situation. The equities might prevail in some situations. For example, if a couple has been living together in a marital-like relationship for decades, took advantage of the domestic partnership registry at the first opportunity, and then took advantage of the right to marry at the first opportunity, the equities may support the family court recognizing the preregistration and premarital period for purposes of support and community property. An argument could be made that because the legal status corresponding to the actual relationship was unconstitutionally denied to the couple, the couple’s intent to be married should prevail over the statutory limitations.
- Consider a “palimony” claim. Divorcing same-sex couples have the possibility of bringing “palimony” type contract claims under Marvin v Marvin (1976) 18 C3d 660 and similar cases. Marvin claims can’t be brought in the family court, and must be initiated separately as civil actions, but they potentially can be consolidated with a related family law action. This type of claim can provide the family court with additional options to address the equities of a premarital relationship period.
- Contract for it. Same-sex couples may enter into agreements to try to clarify and define their intended rights and obligations to one another in the context of the legal relationships they may have entered into (or chosen not to enter into). Among the matters that should be addressed by a couple in such agreements are the character of property accumulated during the couple’s relationship and the need for and payment of spousal support. It’s particularly important for couples to include a statement of what they intend their agreements to cover, as well as what’s not contemplated. This is especially true for prospective changes in the legal relationships between the parties. For example, in an estate case involving a same-sex couple who entered into a prepartnership agreement in which one party waived property rights and there was no provision for a future marriage, that agreement was held to control the parties’ property rights, including after the couple was legally married. Estate of Wilson (2012) 211 CA4th 1284, 1286.
This is an evolving area of law, and there are likely to be many more cases clarifying these issues. Get up-to-date guidance on the special issues facing same-sex couples, including those associated with termination of their relationships, in CEB’s California Domestic Partnerships and Same-Sex Marriage. And check out CEB’s program Dissolutions of Same-Sex Marriages and Domestic Partnerships, available On Demand.
Related CEB blog posts:
- The Complications of Same-Sex Marriage in a Time of Changing Options
- Going to the Chapel or Staying Alive: Marital Deduction for Registered Domestic Partners after Windsor
- Love and Marriage…and Prenups
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