The Effect of Prenuptial Agreements on Same-Sex Marriages

Posted by: Gerald A. Maggio, Esq.

Gay marriage and domestic partnership attorneys in Los Angeles Orange County California; California Divorce AttorneysEver since same-sex marriage was legalized in every state in the US, many questions have been asked related to the laws for same-sex marriage. Many same-sex couples have often raised the question of a prenuptial agreement and whether one should opt for it. A prenup is an agreement where individuals in a marriage have the right to declare a part of the entire asset as separate property. The other spouse has to agree to the arrangement too before it can be put into effect. A prenuptial agreement safeguards a person against unequal or unnecessary property division during divorce. It is an excellent tool for protecting oneself against financial damage. But what are its effects on the relationship and marriage?

Strengthens the marriage

Contrary to popular belief that prenups result in divorces, the agreement can actually be beneficial if both parties agree with each other. A relationship is based on trust, but that does not mean one should go through financial loss for that. Joint property may not be in your hands but the separate property is and it is your job to protect it. A prenup does not mean that property and finance are the most important thing in a marriage. It only means that both individuals should be aware other possesses. If anything, it makes the marriage more transparent.

It helps face reality

Unlike heterosexual couples, same-sex partners stay in a relationship for a longer time. Unlike the former, the latter finds it difficult to go into another relationship after the first ends. A prenup is a reality check as to what lies ahead. When couples are aware of what the future can be like, they become more dependent on their partner. It helps improve the marriage and allows both members to be more amicable towards each other.

A prenuptial agreement is not a bad thing as most people think it to be. It is a declaration of separate property in case a divorce takes place. It is important for same-sex couples because they stay in a relationship for a longer time than their heterosexual counterparts. When they understand what lies ahead of them, they try to keep the marriage going. A prenup is the best guard against financial damage and property loss. But for the same-sex couples, it is more than just a protection; it is a means of coming closer to each other and making the marriage work.

To learn more about the divorce process in California and how mediation can help, please click the following link to receive our free e-book, What is Divorce Mediation

Understanding The California Domestic Partnership Law

Posted by: Gerald A. Maggio, Esq.

Gay marriage and domestic partnership attorneys in Los Angeles Orange County California; California Divorce AttorneysThe California Domestic Partnership Law was cemented by Assembly Bill 2015. The bill states that registered domestic partners will have equal rights, benefits and protections like spouses. They will also be subjected to same responsibilities, duties and obligations under the California state law, independent of these deriving from statutes, court rules and administrative positions or other law sources or provisions. Such protections will be applied from the date the couple registers themselves as domestic partners within the State of  California. These advantages cannot be enjoyed if they move out of California.

Eligibility

The couple must meet a few criteria to get registered in a domestic partnership. First and foremost is that they should live in the same residence. No person in the couple could be married to a third person or be engaged in a domestic partnership with another person. The couple should not be blood related in a manner which will prevent their marriage. Both members of the couple must attain a minimum age of 18 years. The two must be capable of providing consent to domestic partnership. Eligibility conditions specify either both persons be of same sex or one of them or both must be aged 62 years or above.

Domestic partnership registration

Couples must download the domestic partnership declaration form from the California Secretary of State website. Alternatively, the form can be had at the office of any country registrar. It is available at any of the many offices of California Secretary of State. It is required that both parties should sign form in presence of notary. The form must be notarized. It should then be mailed to the Secretary of State office with the needed fee. When you sign the form, you must inform your mailing address. You should also attest to meeting all requirements of having a domestic partner. You also consent to have the case dealing with yourself in any California court in case you will go to the court for partnership dissolution or separation. This is applicable even if both members of the couple do not reside in California.

Any couple who have registered as a domestic partner before January 1,2005 with State of California will automatically gain new responsibilities and rights as offered by the bill. In short, if the couple have not terminated relationship before January 1, 2005, they will now be subjected to the same responsibilities and rights offered by the bill.

To learn more about the divorce process in California and how Orange County divorce mediation can help, please visit our page, What is Divorce Mediation

Legal Rights of Unmarried Couples Living Together

Posted by: Gerald A. Maggio, Esq.

mediator divorce orange county; California Divorce MediatorsMore and more couples are living together in long term committed relationships without getting married. Such partnerships or relationships fall under the category of cohabitation. The legal rights of unmarried couples living together are very different from those of married couples.

Given below are the rights of cohabiting couples:

Rules related to finances

In the eyes of the law, two unmarried people are two separate individuals. So bank accounts, savings, and investments will not be jointly owned. It would remain in the ownership of the named individual. Anything held jointly will be divided equally unless there is a legally recognized agreement signed by the couple.

Unlike spousal maintenance, the partners are not entitled to any kind of financial support. But if there is a child from this relationship, the partner is entitled to child support.

Rules related to child issues

If unmarried couples living together separate, there will be different laws for the custody of the children resulting from this cohabitation. Both parents have equal rights over their children. But it needs to be decided who the children are going to stay with and what the visitation rights would be.

The unmarried couple may voluntarily sign a written agreement or notarized separation agreement stating the rights regarding the custody of the children, visitation and other rights. The agreement will then become the basis of all decisions made regarding the custody of children.

Rules related to property

If an unmarried couple owns a house together, the property will get divided equally between the two partners on separation. One person usually buys out the other’s share of the property. If there is an outstanding mortgage, the partner pays for that too. If this is not possible, the property is sold and then the share of each person is calculated.

If the property is in the name of an individual, the person in whose name the property is retains full ownership. A complication may arise if the person who is not a registered owner has made financial contributions towards the property. If that partner has made payments towards the mortgage, paid for repairs and other improvements, that partner can claim part ownership in the property. You will then have to approach a court of law.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Mediating Same-Sex Divorces

Posted by: Gerald A. Maggio, Esq.

Same sex divorce attorneys; California Divorce MediatorsAlthough most of the states in the USA have accepted same-sex marriages, it has not been accepted completely by the country as a whole. As the governments and the judicial system do not recognize same-sex marriages or partnerships, it becomes quite difficult and challenging for same-sex couples to resolve their personal disputes.

Litigation and court sessions are still the most common methods used by same-sex couples to finalize a separation. It goes without saying that these processes are quite expensive and cumbersome.

California accepts same-sex marriages and domestic partnerships and as such there are options for mediation between gay and lesbian couples. Until very recently, only ‘straight’ couples had the opportunity of mediating their divorces. Now more and more mediators are coming up to resolve marital issues in the LGBT community.

Mediation is a lot more economic and an efficient process. It involves the help and advice of a mediator or an expert. The mediator works towards resolving issues between two parties by opening a healthy discussion and helps to reach a common solution that will benefit both the parties.

Drawbacks in same-sex divorces

Division of property and providing for the children are the two most challenging aspects in gay divorces.

Property division becomes very unpleasant because there are no laws laid down by any governing body to determine a proper sharing of the things owned. Due to the absence of such laws, separating couples need to rely on oral contracts or contract laws.

Oral contracts generally give rise to ‘he said’ – ‘she said’ conflicts thereby making the division even more difficult. When it comes to contract laws, no one thinks of signing a contract when in a healthy relationship.

Mediation sessions are always confidential and aim to reach a consensus in an amicable manner. Mediators help to identify and prioritize issues that are causing conflict. Then they guide and advise you on reaching an agreement. The psychologist, who is part of the mediating team, is present at all times.

Same-sex divorces and separations are as emotionally charged and uncomfortable as straight divorces are.  Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

Same-Sex Divorce Laws in California

Posted by: Gerald A. Maggio, Esq.

same sex divorce; California Divorce MediatorsSame-sex marriages like hetero-sexual marriage have the potential to head for a divorce. The divorce laws differ from state to state and the laws in the State of California is much more relaxed. In California, you don’t have to give reasons for a divorce. If you feel you need a divorce from your partner you can get one without showing any proof of why you need one. In California, it is all about giving a chance to both you and your partner to lead separate lives.

Like in any other marriage, same-sex marriages also have certain considerations. If you and your partner are heading for one, read through the following points to gain a better understanding of things you need to consider.

  1. Dissolving domestic partnerships

In California, domestic partnerships are viewed as marriages. If you plan to divorce your partner, you must end your domestic partnership as well. Only after you have done this will the state declare you single and eligible for re-marriage. This is one important difference between a hetero-sexual marriage and a same-sex marriage.

  1. Residency requirements

If you and your partner are getting a divorce in California but belong from a different state, then there’s lot to cheer about. In California, you don’t need to be a resident of the state to get a divorce. In other states, usually, you need to provide residency proof of at least 6 months before you can head for a divorce.

  1. Custody rights

Custody rights are a big issue in America. The U.S. Justice Department take it very seriously and same-sex couples face the same issue. If you can resolve the issue amicably with your partner, then things become much easier. But if you can’t then the state courts will take weigh every information about the child and then come to a conclusion. Custody battles can be tough and it’s one of the reasons why divorces become difficult.

  1. Dividing assets

Assets are divided based on who owns what. Most times, this can be difficult due t the length of marriage. Again, if you and your partner can decide on which asset belongs to whom, it becomes easy. But in case you can’t decide then the court looks at the duration of marriage and then comes to a conclusion. But mind you, Marriage and living together is not the same thing. It all depends on how the court views your marriage.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Ending Same Sex Marriages And Domestic Partnerships in California

Posted by: Gerald A. Maggio, Esq.

same sex divorce; California Divorce MediatorsPrior to June 27, 2015, there were only several states in the U.S. that allowed for same sex couples to get married. Now, the United States Supreme Court has ruled that same sex marriages are legal and recognized in all of the states, meaning that same sex couples now have equal rights to get married as all other Americans.  This is a huge development and advancement of rights for same sex couples and one that will likely lead to a wave of same sex couples entering into marriage over the next few years.

So what does that mean for existing domestic partnerships and for same sex married couples that seek to get divorced in the future in California?  Because although same sex couples will appreciate their right to get married and will value the institution of marriage perhaps more than heterosexual couples who have always taken their right to get married for granted, same sex couples have the same relationship issues and problems that everyone else has that can lead to the deterioration and end of relationships.  Inevitably, some same sex married couples will seek divorce, although no one knows what such rate of divorce will be for that segment of the population.

Also, those same sex couples that are part of a registered domestic partnership in California will now have the option of getting married and the length of their domestic partnership will be added to the length of the marriage for purposes of spousal support and division of assets, although the case law in California has not caught up to this situation quite yet, but undoubtedly will.

Furthermore, domestic partners and married same sex couples will now be under the jurisdiction of the California Family Code and case law just like heterosexual married couples are, which will apply to them when they seek to terminate their partnership or marriage.  In other words, if parties look to end their registered domestic partnership or same sex marriage, they are in for much the same process as traditional divorce cases and involve most of the same issues, especially if same sex couples decide to legally adopt a child, as follows:

  • Child custody
  • Child visitation
  • Spousal support
  • Division of assets and property

It is a new world for same sex couples as they embrace their new rights and the final wall of inequality has been broken down.  It will also lead to a new world for divorce and family in California and the other states.  But in the end, it is important to recognize that we are all the same and we all have our faults and problems, which can ultimately lead to divorce.  Same sex couples will not be immune to marital problems or to divorce any more than heterosexual couples, because a successful marriage is hard work for everyone.

To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”