1.    CAN SAME-SEX COUPLES MARRY IN CALIFORNIA?

No longer.  Even though, on May 15, 2008, the California Supreme Court ruled that barring same-sex couples from marriage was unconstitutional, the voters on November 4, 2008 passed a “Constitutional Amendment” identifying marriage as only between members of the opposite sex.

2.    CAN THE PASSAGE OF PROPOSITION 8 BE APPEALED TO THE UNITED STATES SUPREME COURT?

Yes, but it is unlikely it will happen, as a negative ruling in the United States Supreme Court would have a devastating effect on this issue nationwide.  The City Attorneys of San Francisco and Los Angeles and County Counsel of Santa Clara County already filed a petition for a Writ of Mandate with the California Supreme Court to invalidate Proposition 8.  In mid November, the California Supreme Court voted 6 to 1 to hear the matter early in their Spring 2009 calendar, but refused to stay the effect of Proposition 8 until they rule on the larger issue.

3.    DOES THE PASSAGE OF PROPOSITION 8 AFFECT THE RIGHTS OF SAME-SEX COUPLES, WHO WERE MARRIED DURING THE PERIOD IN 2008 WHEN SAME-SEX MARRIAGE WAS LEGAL?

Probably not as most the effect of most statutes is prospective only.  The California Attorney General already stated that those who married on or between June 16 and November 4, will continue to have valid marriages recognized in California.

4.    FOR SAME-SEX COUPLES IN BINATIONAL RELATIONSHIPS, WHO WERE LEGALLY MARRIED IN CALIFORNIA, DOES THAT PERMIT A NON-U.S. CITIZEN TO GAIN LEGAL PERMANENT RESIDENCE IN THE U.S. THROUGH THE MARRIAGE?

No. Immigration is governed exclusively by federal law, which currently refuses to recognize same-sex marriages or domestic partnerships for purposes of “any” federal rights or benefits.  A heterosexual person who marries a non-U.S. citizen can petition to have his or her spouse become a permanent legal resident; however, current federal law does not provide the same right to a lesbian, gay, or bisexual person who is married to a same-sex spouse from another country.

5.    WHEN THE CALIFORNIA SUPREME COURT RULED, EARLY IN 2008, THAT SAME-SEX COUPLES COULD MARRY, DID COUPLES WHO WERE REGISTERED DOMESTIC PARTNERS IN CALIFORNIA AUTOMATICALLY BECOME MARRIED?

No.  Couples who are Registered Domestic Partners were free to decide whether or not they wished to marry.  Those who wished to marry must have gone through the formal legal steps required for any couples in California to legally marry prior to the passage of Proposition 8.

6.    DO CALIFORNIA DOMESTIC PARTNERSHIPS CONTINUE TO EXIST?

Yes.  Domestic Partnerships continue to exist unchanged under current California law.

7.    IN 2004, MANY COUPLES WERE MARRIED IN SAN FRANCISCO, AND THE CALIFORNIA SUPREME COURT SUBSEQUENTLY HELD THAT THOSE MARRIAGES WERE INVALID. DID THE COURT’S DECISION IN EARLY 2008 THAT THEN ALLOWED SAME SEX MARRIAGES RESULT IN REVIVING THE SAN FRANCISCO MARRIAGES AS LEGAL?

No.  The Court determined that those marriages were invalid at the time they were entered and those marriages remain invalid, and those couples would have had to remarry between June 16 and November 4, 2008, for their marriage to be recognized.

8.    IF MY PARTNER AND I WERE LEGALLY MARRIED IN MASSACHUSETTS OR CANADA, WILL OUR MARRIAGE NOW BE RECOGNIZED IN CALIFORNIA?

When the Court’s Ruling went into effect allowing same-sex marriages in California, couples who legally married in another jurisdiction, would have been recognized as married in California as well, but it is doubtful at this time.  The legal morass will have to play itself out in the courts before a definitive answer may be given.

9.    IS THERE ANY REASON FOR COUPLES WHO MARRIED BETWEEN JUNE 16 AND NOVEMBER 4TH TO ALSO REMAIN IN A DOMESTIC PARTNERSHIP?

Yes.  Being in a registered Domestic Partnership may protect you if you travel or move to another state that will recognize a Domestic Partnership, but not a marriage.  Furthermore, it will protect you should the Courts invalidate the marriages of those married between June 16 and November 4th.  This is especially important for those whose health insurance is provided by their Partner/Spouse.  If the Domestic Partnership is terminated and the marriage becomes invalid, it may become expensive or impossible to secure health insurance coverage with pre-existing conditions.

10.    WHEN SAME-SEX MARRIAGE WAS LEGAL IN CALIFORNIA, COULD OUT-OF-STATE COUPLES MARRY IN CALIFORNIA?

Yes.  There was no residency requirement to marry in California.

11.    IF MY PARTNER AND I RESIDED IN ANOTHER STATE AND MARRIED IN CALIFORNIA, IS OUR MARRIAGE VALID IN OUR HOME STATE?

If you lived in another state when you got married in California, you are legally married, at this time, in California.  However, depending on where you live, your home state may not recognize your marriage.  Many states have passed discriminatory marriage laws, and in those states, state and local governments likely will not respect your California marriage.  But even in those states, it is  likely that, at least, some private businesses and other private third parties will respect your marriage, particularly those that already recognize same-sex legal relationships through Domestic Partnerships or a similar system.

12.    DOES THE FEDERAL GOVERNMENT RECOGNIZE MARRIAGES OF SAME-SEX COUPLES WHO MARRIED IN CALIFORNIA OR ANY OTHER STATES?

No.  Under current Federal Law, the Federal Government does not recognize marriages of same-sex couples. This means that married same-sex couples currently do “not” have “any” of the rights, benefits, or protections that Federal Law gives to married heterosexual couples, such as the ability to file joint federal income taxes or receive federal spousal benefits through social security or other federal programs.

13.    WHAT HAPPENS IF WE MARRY IN CALIFORNIA AND THEN WISH TO DIVORCE?

The only legal way to end a marriage in California is to get a divorce.  In order to divorce in California, at least one of the parties to the marriage must be a resident of California for at least six months and of the county in which the divorce is filed for three months before filing a dissolution Petition.  If you move from California to another state, or if you already live in another state, getting a divorce could be difficult.  Currently, the only state other than California in which same-sex married couples have a clearly established right to divorce is Massachusetts; however, Massachusetts has a one-year residency requirement before a person can petition a Massachusetts court for a divorce.

New York law appears to respect same-sex couples’ out-of-state marriages even though same-sex couples cannot yet marry in that state.  So, married gay and lesbian couples may be able to petition for divorce in New York; however, New York also has a residency requirement for divorce.  States with civil unions or comprehensive domestic partnerships, like Connecticut, New Hampshire, New Jersey, Oregon, and Vermont, also may allow married same-sex couples to divorce, but each of those states has a one-year residency requirement.  That means that at least one spouse must be a resident of the state for a year prior to the divorce.

Couples who are unable to obtain a divorce remain legally married. Therefore, being unable to divorce may cause serious legal problems and complications for same-sex couples who find themselves in this situation.

14.    IS DIVORCE OF SAME SEX COUPLES THE SAME AS FOR HETEROSEXUAL COUPLES?

Yes.  The rules and obligations of the Family Code are the same for heterosexual marriages as they are for same-sex marriage and the dissolution of Domestic Partnerships: fiduciary responsibilities of the parties toward each other; the identifi-cation and division of separate and community property; spousal/-partner support; child support if applicable; custody and visita-tion if applicable; and the validity of pre- and postnuptial agreements and pre- and post Domestic Partnership Agreements.

If the same-sex married couple is also in a Domestic Partnership registered with the Secretary of State, they must file, not only for a Dissolution of Marriage, but also for a Dissolution of Domestic Partnership.  At this time in California that is two separate litigations, which should then be consolidated and tried together before the same Bench Officer, as the issues and facts of each are the identical, with the exception of basic identifying terms, i.e. partner/spouse, partner support/spousal support, date of marriage/date of registration of domestic partnership.

The dramatic differences between the dissolution of heterosexual marriages and same-sex marriage/domestic partnerships are in the application of the Internal Revenue Code and distribution of Federal Benefits, where both Domestic Partnerships and same-sex marriages are not recognized, which creates a financial mine field for the parties, hopefully to be crossed by a skillful attorney, experienced in the nuances of same sex legal relationships, such as those in Adelman & Seide, LLP.

For further information or specific questions, please contact George N. Seide, Esq., Certified Family Law Specialist, at Adelman & Seide, LLP, (818) 981-8810, 16055 Ventura Boulevard, Suite 712, Encino, California 91436.