Where a San Diego Resident Can Get Divorced

January 15, 2012

Many couples that were married in San Diego have since moved out of state. In fact, it is not uncommon for a couple to get married in California even if they are not currently residents. California, especially San Diego, offers many beautiful destination-wedding venues. However, if a spouse wants to obtain a divorce in California, there are two residency requirements that must be met. Under California Family Code section 2320, a judgment for dissolution (divorce) will not be entered unless one of the parties has been a California resident for at least six months and a resident of the county he or she filed in for at least three months. It is important to consider that unless the issue of residency is contested within thirty days, any defect in the residency requirements is waived.

There are no residency requirements for a couple to obtain a legal separation. This law creates a small tactical opportunity for a spouse that wishes to obtain a divorce in California. If the spouse intends to satisfy the minimum six-months/three-months residency requirements, he or she can file for legal separation and later amend the petition to request a divorce. This allows the spouse to start the divorce process without delay. There is a six-month waiting period for a judgment terminating marital status. When the legal separation petition is filed, this clock will start ticking. The spouse can obtain a divorce in the same amount of time as if he or she was a California resident at the beginning of the proceedings.

The residency requirements are also inapplicable to registered domestic partnerships. This is one area of the law where the rules governing marriages differ from the domestic partnership laws. Domestic partners who register their partnership with the Secretary of State consent to California jurisdiction therefore there are no minimum residence requirements. However, to dissolve a domestic partnership established out of state, one of the partners must satisfy the residency requirements.

Prior to January 1, 2012, same-sex couples encountered a serious problem. During a few short months in 2008, California granted marriage licenses to same-sex couples. From June 17, 2008 until September 17, an estimated 11,000 same-sex couples got married. Under The Federal Defense of Marriage Act (DOMA), states are not required to recognize same-sex marriages entered into in other states. A dilemma arose for a same-sex couple married in California and living in other states that refused to recognize their marriage. This couple could not obtain a divorce in California because they did not satisfy the residency requirements and could not obtain a divorce in their current state because it did not recognize their marriage.

Although California grants some rights to domestic partners, they do not grant all the same rights that are recognized in marriages. The Domestic Partnership Equality Act was recently passed in order to correct some of the legal inequalities that exist between marriages and domestic partnerships. Under new California Family Code section 2320 and the Domestic Partnership Equality Act, a same-sex couple can obtain a divorce in California even if neither spouse is a current resident. The couple must satisfy two requirements. First, the marriage must have been entered in California. Second, neither party currently lives in a state that will grant a divorce. The Act creates an opportunity for these same-sex couples that were previously trapped in marriages to finally obtain a divorce. It will apply to same-sex marriages entered into before Proposition 8 passed and will apply to future same-sex marriages if Proposition 8 is deemed unconstitutional.

Please contact us if you are considering a divorce from your spouse or a legal separation. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer in San Diego who also holds an MBA and a CPA. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.