FAQs

Are We Still Married? Same-Sex Marriage FAQ

Q: After many years together, my partner and I finally got married in California after the Supreme Court issued its marriage opinion in May 2008. Is our marriage still valid since Proposition 8 was passed by a majority vote in November 2008?

A: Yes, presuming you properly followed marital procedure of obtaining a marriage license, having a ceremony, and recording the certificate afterward, your California marriage entered before November 5, 2008, remains a valid and recognized marriage. On May 26, 2009, the California Supreme Court issued its opinion in the three consolidated appeals of the constitutionality of Proposition 8, which I will call the “Prop 8 Opinion.” The Prop 8 Opinion held that Prop 8 was a valid constitutional amendment which prevents California recognition of same sex marriages prospectively beginning November 5, 2008. The Court held that validly-entered California marriages entered before Prop 8 was passed by the voters remain valid and recognized marriages. After the Court’s Prop 8 opinion, the California legislature enacted Family Code section 308 to state that same sex marriages legally performed anywhere before November 5, 2008, are legally recognized marriages in California.

In case you are unfamiliar with the history, in May 2008, the California Supreme Court issued its opinion that California’s Defense of Marriage Act (DOMA), enacted as a statutory voter initiative in 2000 (then called Prop 22), violated the California constitution. In mid-June 2008, the opinion became effective, and County Clerks began issuing marriage licenses to same sex couples. On November 4, 2008, California voters passed Prop 8 as a constitutional amendment by a majority vote. Now officially called Article I, Section 7.5 of the California Constitution, and codified at Family Code section 308.5, Prop 8 says, in its entirety, “Only marriage between a man and a woman is valid or recognized in California.” Prop 8 became effective the next day, November 5, 2008, and California County Clerks stopped issuing marriage licenses to same sex couples, although some couples have continued to marry in other jurisdictions, as discussed below. As discussed in this FAQ, the Prop 8 Opinion resolved some but not all of the questions which have arisen.

Since the California Supreme Court upheld the validity of Prop 8 under California law, a federal district judge found Prop 8 to be unconstitutional, and the decision was upheld by the 9^th Circuit. The case is currently pending in the United States Supreme Court, and we expect a decision by the Supreme Court regarding the constitutionality of Prop 8 in late June 2013. If the Supreme Court rules in some way which affirms either the district court or 9^th Circuit in some way, Prop 8 will be invalidated, and county clerks will again begin issuing marriage licenses to same sex couples and California. However, even if the U.S. Supreme Court overturns the lower court opinions and rules that Prop 8 was constitutional, that will have no effect on the marriages that were validly entered in California before November 5, 2008.

Q: My partner and I live in California, and we would really like to get married. Can we get married in Massachusetts, or some other state, and have our marriage recognized here in California?

A: After the California Supreme Court upheld Prop 8 as constitutional on the grounds that it affected only the word “marriage,” but not the rights and responsibilities of marriage, the California Legislature enacted a reciprocity law which specifically addresses same sex marriages in other states or foreign countries. Family Code section 308(c) states that marriages between members of the same sex performed outside of California on or after November 5, 2008, are recognized as legal unions conferring all rights and benefits of marriage, “with the sole exception of the designation of ‘marriage.’” Practically speaking, these recent changes to the law now mean that California recognizes all marriages, domestic partnerships and civil unions from other states and foreign countries as conferring all spouses rights and obligations under California law. So, if you and your partner want to go to Massachusetts or some other state to get married, go get married! Whether or not to marry is a personal choice that couples must make together. Many states and foreign countries which permit same sex marriage do not impose residency restrictions on getting married. Your marriage will be recognized here in California as conferring all the rights and obligations of marriage, “other than the designation of ‘marriage.’” To avoid any confusion, given the fact that these relationships are recognized as providing spousal rights and obligations without actually having a name, we recommend that you also register as domestic partners, but under the current law that is not necessary.

When the Supreme Court issues its opinion on the constitutionality of Prop 8 in June 2013, Prop 8 will either be affirmed, with the status quo continuing in California until Prop 8 is overturned by the voters of California, or Prop 8 will be invalidated and California will again fully recognize marriage validity performed in any jurisdiction at any time.

Q: My partner and I got married in California in the fall of 2008. Is our marriage recognized by the federal government?

A: At this time, the federal government continues to deny recognition of marriages between same sex spouses pursuant to the federal statutory Defense of Marriage Act. Because the federal government does not recognize such marriages as “marriages” for purposes of federal law, you cannot file joint tax returns, obtain spousal recognition for immigration or social security purposes, or any of the other federal marriage rights. However, the constitutionality of the federal Defense of Marriage Act is also pending with the United States Supreme Court, along with the Prop 8 case, and a ruling on the constitutionality of DOMA is also expected in June 2013. If the Supreme Court upholds federal DOMA as constitutional, then the status quo will continue, and same sex married couples in California will continue to enjoy all rights and obligations of marriage conferred by the state, but not federal rights. If DOMA is overturned, then same sex married couples in California will have the same rights that opposite sex married couples have, both on a state and federal level.

Q: Six months after my long-time partner and I were finally married in California in the summer of 2008, she told me that she wants out of the relationship. Can we get a divorce now that Proposition 8 has passed, or do we even need a divorce?

A: To dissolve a California marriage, you need a judgment of dissolution by a court with appropriate jurisdiction. The Prop 8 Opinion affirmatively resolved the question of the validity of your California marriage entered before November 5, 2008, so a California Superior Court will recognize your marriage for purpose of dissolving it. You must comply with all laws regarding dissolution of your marriage, or, in other words, go through the same divorce process that heterosexual married couples must go through to obtain a judgment of dissolution of the marriage.

Q: My partner and I are ending our relationship. We married in September 2008, but we also registered our domestic partnership with the state in 2002. Does our domestic partnership registration in addition to our marriage change the situation?

A: Not really. Because the Prop 8 Opinion held that same sex marriages entered before enactment of Prop 8 remain valid and recognized in California, you are both married and registered domestic partners, and you need a judgment dissolving both relationships. Because California grants the same basic rights and responsibilities of marriage to domestic partners, the two overlapping relationships impose the same obligations. Whichever occurred earlier, however, will be considered the date California marital laws began to apply. California procedure requires that you commence an action for dissolution choosing a form either drafted for marriage or a separate form drafted for domestic partnership. If you have to dissolve both relationships, then you can do it in one action but you have to pick one of the forms to commence the action. I recommend picking the form appropriate for whichever relationship was entered first, and then checking the box marked “other relief requested” at the bottom of the second page of the Petition, and writing in the space provided, for example, “The parties also request an order dissolving their California marriage entered on September 15, 2008,” or whatever is appropriate. The only real distinction between the two is the jurisdictional requirement, which is discussed in more detail below. The Judicial Council of California is working to revise the divorce forms to consolidate the domestic partnership and marriage forms into a single form, and as soon as that process is complete the forms should be less confusing to couples with overlapping relationships. Since California has residency restrictions for dissolution of marriage, couples that have to dissolve both a marriage and a domestic partnership should bring an action in the county that meets the jurisdictional requirement for dissolution of marriage.

Q: Isn’t there something we can do other than a full divorce action in Court to dissolve our domestic partnership and marriage?

A: For some small minority of couples who meet a very restrictive set of conditions – e.g., marriage/DP of less than 5 years, no children, no real property, very low debt threshold, etc. – there is a Summary Dissolution procedure available for marriages and a Summary Termination procedure available for domestic partnership. The restrictions are discussed in more detail in our Domestic Partnership FAQ, so if you think you might qualify, please see the discussion there for more details. However, the summary termination procedures still require complete financial disclosures and a written property agreement, so anyone terminating a marriage or domestic partnership with this more limited procedure should at least consult an attorney to make sure that they are doing it correctly.

Q: My husband and I live in Arkansas (or any other state that doesn’t recognize same sex marriages), where we have lived together for many years. We came to California on vacation for the July 4th 2008 weekend and we got married at San Francisco City Hall. Now we are breaking up. Am I legally married? How can I divorce him?

A: California imposes no residency restriction on getting married. People can travel to California for their wedding, and it is perfectly legal. California issued marriage licenses to same sex couples during the six month window in 2008 before Prop 8 passed, and those marriages have been affirmed as valid marriages. If Prop 8 is overturned by the Supreme Court in the ruling expected in June 2013, then California will again begin issuing marriage licenses. Marriage is big business, and California businesses market California as a wedding destination. During that window of time in 2008, marriage was heavily promoted to same sex couples around the world by counties and private companies. People who travelled here from out of state and got married before Proposition 8 passed entered valid marriages, as affirmed by the Supreme Court in the Prop 8 Opinion. This is the same for out-of-state and in-state residents.

But this question presents another layer of problems, because the parties reside in a state that doesn’t recognize their relationship. Most people get divorced in the state where they reside, and every state imposes some residency restriction on marriage. For people who live in states that don’t recognize their marriages, that is a big problem, and they can be stuck in a legal relationship that they are not able to dissolve. California amended its Family Code to retain jurisdiction over marriages legally performed in California that are not recognized where the parties to the marriage live. The section provides that if you live in a state that does not recognize the marriage (like Arkansas), then you can divorce in California. The action should be filed in the county where the marriage license was issued, and the statute provides that California community property law will apply to the dissolution. The first step for anyone who resides out of state and was legally married is to check out the law of the state where you reside. If that state doesn’t have a DOMA, then you may very well be able to get divorced in your home state. Most states won’t recognize same sex marriages, though. I know of very real situations where couples have been unable to change their spousal survivorship provisions of certain retirement plans to identify new partners because they live in states that will not recognized their marriages. If they married in California, we can now take jurisdiction of those marriages in the county where the marriage license was issued, and we can obtain a judgment of dissolution.

Q: Does it matter if we were married in another state? My husband and I married in Massachusetts in 2006. In summer 2008 we tried to marry in California, but we were refused a marriage license because we were already married. Now that Proposition 8 passed, are we married or not? We have separated but don’t know if we need a legal action to dissolve our MA marriage, or if that is even possible.

A: Many couples were refused licenses because they were already married (to one another), and many couples married again in California even though they had already married in Massachusetts, Canada, Spain, or some other jurisdiction which permitted same sex marriage. Some counties permitted re-marriage to the same spouse, and some counties refused to issue licenses. This is because one of the prerequisites for a marriage license is both parties must be unmarried. The Supreme Court upheld Prop 8 as prohibiting same sex marriages in California after November 4, 2008, but the Court upheld marriages performed in California before November 5, 2008, as legal and valid marriages, without specifically addressing marriages performed outside of California in other jurisdictions before Prop 8 was passed. Subsequently, Family Code section 308 was enacted by the California Legislature to recognize all same sex marriages legally performed anywhere before November 5, 2008. The section also recognizes that validly performed same sex marriages in any state or foreign jurisdiction after November 5, 2008, will impose all the rights and obligations of marriage on California residents, other than the word “marriage.” As discussed above, that is likely to change in the near future if the Supreme Court upholds the lower court findings that Prop 8 was unconstitutional. If so, California will then recognize all validly performed marriages for same sex couples, wherever and whenever they were entered.

DISCLAIMER: This article is intended to provide general information about selected legal topics. The information provided is not legal advice, and is published for informational purposes only. It is not intended to be used as a substitute for specific legal advice or opinions, and the transmission of this information is not intended to create an attorney-client relationship between the sender and the receiver. No reader should act on information contained in this article without obtaining the specific advice of legal counsel. The attorneys at Wald & Thorndal, P.C. are licensed to practice law in the State of California, and do not offer advice as to the laws of any other state.