This article is for general informational purposes only; it is not intended, nor should it be construed, to be legal advice or to create a lawyer-client relationship. You should consult an attorney about how the law might apply to your particular facts. This section only discusses public marriages; different rules apply to confidential marriages, which are not discussed here. Getting married in California only involves three steps, but each step is mandatory: consent, issuance of a marriage license, and solemnization of the marriage.
Consent: Consent is the first step in getting married in California. California treats marriage both as a personal relationship and as a civil contract. Because marriage is a type of contract, each person must consent to it. To be valid, consent must be freely given, mutual, and communicated. Consent is not valid if it is obtained by duress, menace, fraud, undue influence, or mistake. Each person must willingly desire to marry the other. Perhaps the most common example of consent in this context is a simple marriage proposal, where one person asks another person to marry him or her and the other person says yes. To be able to consent to marriage and get married in California, neither person has to be a United States citizen or even a California resident. California only requires that each person be at least 18 years old, of sound mind, and not already married to someone else. (A minor who is not yet 18 years old can also consent to marriage but only with written parental permission and a court order.) Importantly, consent alone is not enough to get married in California because California does not recognize common law marriage. After two people have consented to marry each other, they must next get a marriage license.
Issuance of a Marriage License: Getting a license is the second step in getting married in California. Marriage licenses are available from the county clerk of each county for a fee. Los Angeles County, for example, currently charges $90 to issue a marriage license. If a couple desire to get married, they may apply for a marriage license in person at the county clerk’s office or online from the county clerk’s website, if available. Los Angeles County offers online applications for a marriage license at http://www.lavote.net/clerk/marriages.cfm. Applying online can save time, but a couple must still go to the county clerk’s office together, in person, to pay the fee and obtain the actual license. At the county clerk’s office, each person must present current proof of his or her identity and age, including, for example, a government-issued identification card, driver license, passport, or alien resident card. Effective June 28, 2013, every county in California resumed issuing marriage licenses to same-sex couples following the United States Supreme Court’s decision in the case of Hollingsworth v. Perry. Once a couple obtains a marriage license, they may get married on the same day in a civil ceremony at the county clerk’s office if they arrived early enough in the day to complete the process. There are additional fees for this service. Otherwise, every marriage license is valid for 90 days, during which period a couple may get married by any person authorized to solemnize a marriage under California law.
Solemnization of the Marriage: Solemnization is the last step in getting married in California. After obtaining a marriage license from the county clerk, a couple must have their marriage solemnized. California law determines who is authorized to solemnize a marriage, including, for example, the following: priests, rabbis, ministers, and other duly authorized religious officials; active and retired state and federal judges and commissioners; currently elected state and federal legislators, county supervisors and clerks, and city mayors; and any person who has been deputized by a county clerk to solemnize a marriage for a limited period of time, usually one day. Some couples, including same-sex couples, prefer to have a friend solemnize their marriage, which their friend can do if he or she has been deputized by the county clerk. Los Angeles County, for example, has a Deputy Commissioner for a Day program, allowing a person to apply to be deputized for a day to perform a wedding ceremony. The application is available online at http://www.lavote.net/recorder/pdfs/deputyComApp.pdf. At the ceremony, the couple must present their marriage license to the person who will solemnize their marriage (the officiant), and the officiant must fill out the solemnization sections of the license. California deems the couple to be married once the marriage has been solemnized in the presence of one or more witnesses, usually in a ceremony according to the couple’s personal preferences or religious practices, after which the officiant is responsible for returning the completed marriage license to the county clerk within 10 days.
GETTING MARRIED: HOW TO PROTECT YOURSELF
People get married for a variety of reasons, whether for love or for economic, religious, or other reasons. However, many people do not realize that when they get married, not only do they receive the legal benefits of marriage, they also automatically assume a number of legal obligations. Many of the obligations are not triggered except in the event of a divorce. Unfortunately, before getting married, many people are not aware of, or do not consider, the steps they can take to protect themselves and their assets in the event of a divorce. California’s Uniform Premarital Agreement Act allows a couple intent on getting married to enter into a written contract governing a number of subjects, including, for example: their existing and future rights to property owned by either of them individually or both of them together; the disposition of their property in the event they separate, divorce, or die, or upon the occurrence of any other event they choose; and any other matter affecting their personal rights and obligations (e.g., entitlement to or waiver of spousal support, or alimony) so long as it does not violate law or public policy. Premarital agreements are a helpful tool that can lessen the acrimony and cost of a divorce, but the decision whether to enter into a premarital agreement, and if so what the terms of the agreement should be, is a very important one that requires a great deal of thought, analysis, and serious consideration. The law governing premarital agreements is complex, and every person considering a premarital agreement should first consult with an attorney who is experienced with premarital agreements and the law governing them.
GETTING DIVORCED: THE GENERAL PROCESS
The process to get divorced in California is the same for same-sex couples as it is for opposite-sex couples, whether they are married or registered domestic partners or both. While some couples can take advantage of California’s shorter, summary dissolution process, most do not qualify and must go through the usual process. When a couple gets married, they assume several fiduciary duties to each other, including duties of full and fair disclosure of all assets, liabilities, income, and expenses in a divorce proceeding. Some couples’ break-ups are amicable and do not involve litigation, in which case their divorces are primarily a matter of filling out the proper paperwork, memorializing the couple’s agreement about who gets which property and who, if either of them, is getting any support, and submitting all of the paperwork to the court in the format required by law – although even an uncontested divorce still involves a veritable mountain of paperwork. Other couples’ break-ups are contentious do involve litigation, which only increases the cost of their divorce, and can involve court hearings, depositions, and even a trial, although there are no jury trials in family law cases like there are in criminal cases and other civil cases. Depending on the facts and the couple’s individual and joint financial circumstances, a divorce can involve a variety of legal issues, including, for example: who should have custody of any children; who, if anyone, should pay child support, spousal support, or attorney fees and costs, and if so how much; and who will get what property or become responsible for which debts. A couple’s divorce case can also be impacted by a number of other areas of the law, including, for example, tax law, probate, bankruptcy law, immigration law, and more. A common complaint by many couples, both opposite-sex and same-sex couples, is that California makes it very easy to get married but very difficult to get divorced – which is often true. Every person considering a divorce or who has already been served with divorce papers should consult with a family law attorney to discuss the particular facts and circumstances of your case and how they may be affected by these areas of law.
David Gamblin is an associate attorney at Bennett & Erdman in Los Angeles, a full-service Southern California law firm practicing family law, business law, and real estate law, including for LGBT individuals and same-sex couples, including divorce (marriages and domestic partnerships), premarital agreements, custody, support, and the broad range of other family law issues.
By: David Gamblin, associate attorney at Bennett & Erdman