Legal Question in Family Law in California

You post an interesting question.

Same-sex marriage was legalized in Massachusetts in 2004. California allowed same sex marriages for a short period of time, until Proposition 8 was passed. Proposition 8 is currently involved in a federal appeal in the 9th Circuit Court of Appeals.

On October 12, 2009, former Governor Schwarzenegger signed Senate Bill 54, which recognizes same sex marriage lawfully entered into in a state outside of California, if that marriage was entered into before passage of Proposition 8. That bill provided that, notwithstanding any other provision of law, a marriage between 2 persons of the same sex contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in California if the marriage was contracted prior to November 5, 2008.

That bill also has a confusing provision for same sex marriages entered into after November 5, 2008, in other states that recognize same sex marriage. Your marriage in September 2009 would qualify under those provisions.

The bill specified that, notwithstanding any other provision of law, 2 persons of the same sex who contracted a marriage on or after November 5, 2008, that would be valid by the laws of the jurisdiction in which the marriage was contracted shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, as specified, as are granted to and imposed upon spouses with the sole exception of

the designation of "marriage."

The bill is now codified in California's Family Code section 308. http://law.onecle.com/california/family/308.html

The specific subdivision that applies to your situation would be subdivision (c).

Unfortunately, the law created more problems than it solved. Under a strict reading of the law, you don't have a marriage, but have all the rights, protections, and benefits and the same responsibilities, obligations and duties as in a marriage between different sexes. But it is not designated a marriage. It is not clear whether it is treated as a domestic partnership, or something else.

In preparing this response to you, I have been unable to find anything interpreting this section, that would clarify whether you would be entitled for file a petition for dissolution or annulment, or must proceed under the same law as dissolving a domestic partnership.

I would certainly be interested in reading the responses from other attorneys on this interesting issue.