Same-Sex Marriage & Family Law


By: Partner, Casey J. Marticorena, Esq., Certified Family Law Specialist

In the recent SCOTUS decision in Obergefell v. Hodges, the Court found that the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Put simply, same-sex marriage is now legal in all 50 states.

The Court’s decision expresses that “marriage is a keystone of the Nation’s social order.” Justice Kennedy’s decision recites what will certainly become one of the most quoted legal passages arising from this historical event:

No union is more profound than marriage, for it embod­ies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people be­come something greater than once they were.

It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be con­demned to live in loneliness, excluded from one of civiliza­tion’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

The decision undoubtedly has societal impact. But what are the practical impacts to family law and the family law litigant? Here are a few anticipated outcomes in California:

1. Family Code and Community Property Law: Since same-sex marriage is now legal, family law issues such as custody, support, dissolution and division of property, will be governed by the California Family Code and community property laws. Community property law maintains that all property acquired during marriage is presumed to be community property and therefore divided equally upon divorce.

2. Prenuptial Agreements: We will see same-sex couples taking advantage of the protections afforded in the Uniform Premarital Agreement Act which has been adopted in California and is part of our Family Code.

3. Divorces and Further Congestion of Family Court: With more marriages, come more divorces. It is no secret that California, and Los Angeles specifically, have a terrible problem with litigation delay, court closures and lack of resources for self-represented litigants. Fortunately, there are various ways your family law attorney can help you navigate through the legal process to avoid unnecessary delays.

In sum, family law litigants can expect to see some practical changes as a result of this recent decision. With this in mind, it is advisable to seek counsel from a Certified Family Law Specialist or an attorney who practices solely in family law to handle your matter for an optimum resolution.