Same-Sex Marriages May Be Dissolved in California When Neither Party Meets Residency Requirements

 If you married your spouse in California before same-sex marriage was recognized nationwide, you may now be living in another state that prohibited same-sex marriage prior to that date. After Obergefell v. Hodges was decided in 2015, many couples reasonably treated the question as closed. That was all the more true after then-President Biden signed the Respect for Marriage Act in 2022, repealing the Defense of Marriage Act (DOMA).  However, the footing appears less settled than it did then.  As recent reporting in The New York Times notes, the effort to reopen the question is gaining both “strength” and “seriousness.”

For spouses who are in same-sex marriages but living outside California, if any actions are taken to limit same-sex marriage or divorce in the future, will your ability to get divorced become limited, too? Section 2320 of the California Family Code allows for a dissolution of marriage or a legal separation for parties who were married in California but are living in a place that refuses to dissolve their marriage. That is not an issue under federal law today, but it may bring some relief to parties in same-sex marriages who are living in states where there is uncertainty.

What Has Changed Recently That May Impact Same-Sex Marriage (and Divorce) Rights

 According to the recent report in The New York Times, there is little indication to suggest that current officeholders are currently preparing to revisit Obergefell or seeking to end same-sex marriage rights, while describing advocacy groups pursuing the goal with “renewed energy and ambition.” For families, the practical question may be less how those efforts fare than what protections hold regardless of the outcome.

Public opinion has shifted as well. A recent Gallup poll revealed that support for gay marriage has declined.  Bills and resolutions seeking to limit same-sex marriage, or to overturn Obergefell outright, have also been introduced in approximately 12 state legislatures over the past year.

California Protections for Divorce Among Same-Sex Couples

 Most of these bills and resolutions have died in committee, but the uncertainty remains. California law has protections for divorce among same-sex couples who may live in jurisdictions that ultimately refuse to recognize their marriages or to grant divorces if both of the following are true:

• Marriage was entered into in California; and
• Neither spouse currently resides in a jurisdiction that will dissolve the marriage.

If both are true, and you live in a state that later restricts same-sex divorce, you may still be able to obtain a divorce in California.

Contact a Santa Clara County or San Mateo County Divorce Lawyer to Find Out More About the Divorce or Dissolution of Marriage in Same-Sex Cases

 Do you have questions about a legal separation or dissolution of marriage (i.e., divorce) in California for your same-sex marriage? The experienced Santa Clara County and San Mateo County divorce attorneys at Foster Hsu, LLP can speak with you. Contact our firm today to get started, or to learn more about what thep rocess involves in San Mateo or San Jose areas.

Sources:

https://www.nytimes.com/2026/06/24/us/politics/gay-marriage-backlash-republicans-trans-rights.html

https://codes.findlaw.com/ca/family-code/fam-sect-2320/