Same-sex LGBT divorce FAQ: What Does Federal Law Mean for Same Sex Marriages in Irvine, Newport Beach and all of OC California?
Gay and Lesbian Marriage in Orange County, CA
Recent changes to federal law have legalized same sex marriage across the nation. In California, however, those in gay and lesbian relationships were first allowed to marry back in June of 2008. Although this allowance was suspended in November of 2008 and not reinstated until June of 2013, California continued to recognize same sex marriages during this period.
Same sex marriages are both legally allowed and legally recognized in California today. Both same sex and opposite sex partners in California can also register a domestic partnership in California if they choose.
What Does Federal Law Mean for Same Sex Marriages in California?
Same sex marriage may have been legal in California for some time, but a recent decision by the United States Supreme Court will change the way same sex marriages work in the United States. In June of 2015, The United States Supreme Court legalized same sex marriages across the United States.
Previously, same sex marriages were only issued and recognized in certain states. There are certain differences between marriages and registered domestic partnerships in California, and many of the issues with a registered domestic partnership arise from the fact that they are not recognized in other states.
One of the greatest benefits of the federal legalization of same sex marriage is that it allows marriages that take place in California to be recognized in other places, and for same sex married couples to receive federal benefits in addition to state benefits.
Where there is marriage, there is also divorce. Another benefit of the recognition of same sex marriage across the nation is that divorce is also possible. Things like child custody, visitation, child support, spousal support, and the division of property are available to couples going through a divorce - but in order to be eligible for a divorce, a marriage needs to be recognized.
Marriage vs. Domestic Partnerships in California
Choosing between a marriage and a domestic partnership is something any couple in California has a right to do. Both same sex and opposite sex couples can apply for either one. There are many differences, and the law is changing, especially recently, regarding same sex marriages.
Currently, same sex marriages are recognized in all 50 states because they are recognized federally. California has offered and recognized same sex marriages longer than almost any other state. Domestic partnerships, however, are only recognized in the state in which they are issued.
These recognitions can affect things like the right to make medical decisions for a spouse or partner. All 50 states recognize marriages, and in all 50 states a spouse is allowed to make medical decisions for an incompetent or disabled person without having written permission. In a registered domestic partnership, however, these rights may not be recognized outside of California because the domestic partnership may not be recognized outside of California.
Married people of both sexes also enjoy numerous benefits through marriage. These benefits include the following.
• The right to make medical decisions for a spouse without having prior written permission in the case that one spouse becomes incapacitated,
• The right to many family securities and protections,
• The right to unlimited gifts, transfers, and inheritances without tax penalties,
• The right to file joint federal taxes, and to reap the benefits of joint filing status,
• Eligibility for social security benefits, veterans benefits and pension plan survivor benefits in the case of the death of one spouse,
• The right to sponsor spouses and family members for immigration,
• The right to a name change at the time of marriage.
There are many reasons why a person of any sexual orientation would choose a marriage over a registered domestic partnership, especially because marriage offers so many more benefits.
What are the Requirements for Marrying in California?
California does not have many requirements for marriage. To marry in California, a person can be of either gender or sexual orientation. A person does not need to reside in California to get married in California, and there is no waiting period.
Marriage by proxy is not legal in California. Both parties need to be physically present in the same location with a marriage officiant, and preferably a witness, in order to legally marry.
Parties who are already in a marriage cannot marry in California. Both parties need to be of legal age and competent enough to agree to the marriage. If one party has been married prior, that party will need to have the date that the previous marriage ended, as well as the reason that it ended.
Things like fees can vary depending on the county in which the marriage is filed. Certain counties might also require divorcees to have a copy of a divorce judgment.
California Marriage Licenses
There are two kinds of marriage licenses that can be issued in California: a confidential marriage license and a public marriage license.
Public Marriage License
To get a public marriage license, both parties must be at least 18 years old, or have written consent from a parent or legal guardian in addition to permission from a California Superior Court Judge. A public marriage license needs to be filed in the county in which it was purchased.
Once the license has been purchased, the couple is free to marry. With public marriage licenses, at least one witness must be present at the wedding ceremony, but up to two witnesses may sign the license.
Confidential Marriage License
Confidential marriage licenses are slightly different from public marriage licenses.
Both parties must be at least 18 years old to apply for a confidential marriage license. Those under 18 are not allowed, even with the permission of a parent or guardian.
With a confidential marriage license, both spouses must live together when they apply for the marriage license, and they must sign an affidavit that verifies that they do.
The marriage needs to take place in the county where the license is issued, but there are no witnesses required to sign the license or to be present at the ceremony.
One of the benefits of a confidential marriage license is just that - confidentiality. The license will be kept on record at the county office where it was purchased, and only the couple whose marriage it licenses may purchase copies of the license without a court order.
Obtaining a Marriage License
Depending on the kind of marriage license you want, and where you get it, you can usually apply for a marriage license the day before or the day of your wedding ceremony. Sometimes a marriage license will be valid for up to 60 days, and as long as your ceremony takes place within those 60 days, it will be valid.
Costs can vary, but tend to be around $100. Depending on the county where you get your license, you may have to get it in person, or you may be able to find it online.
The History of Same Sex Marriage in California
Getting married is a big step, regardless of sexual orientation. California is one of the most progressive states in the nation when it comes to same sex marriage, although the state’s laws have changed several times in the past decade.
Same sex marriages were briefly legal in 2008, from June until November, due to a California Supreme Court ruling that said that the ban on same sex marriage went against the constitution of California. In November of 2008, however, Proposition 8 was passed by California voters. Proposition 8 amended the constitution of California so that it said that marriage could only be between one man and one woman.
Same sex couples who had married during the brief period of legal same sex marriages in California remained legally married, even after proposition 8 was passed.
In 2010, a judge ruled proposition 8 unconstitutional because it violated both federal due process and equal protection - or, in simpler terms, the state had no secular reason to disallow same sex marriages. This decision was appealed to the United States Supreme Court.
In 2013, it was decided that the appeal had no standing, and the judge’s decision could not be overturned. This legalized same sex marriage in California again, and same sex couples were once again allowed to marry in California.
In June of 2015, same sex marriage was legalized nationwide, which means that same sex marriages that have taken place in California since 2008 are now recognized across the entire United States.
Orange County Same Sex Marriage Lawyer
If you have questions about how the laws in California have changed, or about how federal marriage laws affect you, it is important to discuss your concerns with a qualified family lawyer. California lawyers have experience with same sex marriage because it has been legal in California for several years.
Contact the lawyers at Yanez & Associates to discuss your same sex marriage and your rights at a free initial consultation today.
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