In the ever-evolving commitment landscape, what can you do to protect your interests in the event of separation? Begin by understanding the status of the law as it applies to your relationship. It is vital to protecting your interests. Same-sex married couples, and couples that are registered domestic partners, can find protection under specific California law applied to the union. For couples that are not married or domestic partners, they can create protection under contractual and cohabitation agreements and other legal remedies. Some general issues are discussed below.
Let’s begin with what we need to know about property and debt division. Community property is defined as all property acquired during the marriage or domestic partnership, other than a gift or inheritance. In the context the dissolution of a marriage or domestic partnership, community property and debts must be indentified and divided. Community property can include wage contributions to investment accounts/401k’s, debts, real property, household furniture – you name it, if it was acquired during the marriage it may be fair game for division. The law extends some protections through agreements between the parties regarding the characterization of the asset/debt as community property. Many couples take advantage of pre and post nuptial agreements and other contractual agreements. Enlisting the assistance of an experienced family law attorney in this scenario is important. Couples that are not married or registered domestic partners do not enjoy many of the protections that the law extends to their married and partnered counterparts. Couples in this circumstance are particularly vulnerable in terms of the protections of individual interests in assets/debts acquired during the relationship. These couples can take advantage of contractual agreements to define assets and debts.
Couples that are married or registered domestic partners need to be aware of alimony/spousal/partner support considerations. There are several criteria considered by the court when determining whether to award spousal/partner support. Again, one should enlist the assistance of a family law attorney to discuss your specific situation and what support obligations may be reasonable in your case.
Couples with children have important decisions to make. For the most part, the law has not caught up with the same-sex relationship construct, and it does not provide the same protections to the parental relationship as it does in heterosexual unions. For instance, California law provides that a child born into a heterosexual marriage is presumptively the child of the husband regardless of whether he is the biological father. These protections, however, have not yet been extended to children born to the marital union or domestic partnership of a same-sex couple. There are minimal protections for a same-sex parent that does not share in legal custody of the child. For this reason, couples MUST put protections in place to protect the relationship. Many same sex couples take advantage of second parent adoptions to obtain protections. Others request assistance from the court to obtain court ordered visitation or explore other alternative visitation remedies.
The field of family law regarding same sex relationships is rapidly evolving. Same sex couples should keep in mind that although the law extends many of the protections that it does to heterosexual couples, being proactive about protecting individual assets and relationships is necessary to gain full protection under the law. Until the law catches up, planning and remaining one step ahead is key to protecting what matters most to you and your partner.
Disclaimer
This article is designed for general information only. The information presented should not be construed to be formal legal advice or the formation of a lawyer/client relationship. Please seek the assistance of an attorney to discuss these issues as they apply to your specific situation.
Rachel Young is a family law practitioner in San Diego County. She represents clients in dissolution of marriage, domestic partnerships, and handles issues relating to child custody, restraining orders, CPS defense, foster parent/defacto parent representation, and adoption. Her firm facilitates domestic partnership agreements, prenuptial agreements between same sex partners, and provides additional services regarding same sex relationships. Rachel can be reached in Hillcrest at (619) 584-0505 or at ryoung@ rpylaw.com.
