Same-sex marriage is now legal nationwide, and that means same-sex divorce is as well. Most states, however, resisted same-sex marriage for years, which means that in some states same-sex divorce is still a work in progress. Judges are left grappling with how to grant divorces in a legal framework that has not yet caught up. Florida’s divorce laws were written for heterosexual couples, which has made it difficult to adapt them to same-sex couples. Orlando Family Team represents same-sex divorcing couples, and we understand the challenges they face as the legal system continues to evolve.
What Are Some Unique Issues Affecting a Same-Sex Divorce?
All married couples in Florida now have the same rights, but the lag in legislative progress has made some issues particularly difficult. A same-sex divorcing couple may face unique issues involving these and other matters:
How Do Marriages from Other States Affect Same-Sex Couples?
Prior to the 2015 Supreme Court decision that legalized same-sex marriage nationwide, each of the 50 states had their own rules regarding same-sex marriage. Some states legalized marriage outright, while others recognized civil unions and domestic partnerships. This patchwork of state laws was essentially rendered moot by the Obergefell decision of 2015. But before the ruling, many gay and lesbian couples obtained marriage licenses in states that recognized same-sex marriage to some degree.
Florida has a residency requirement that applies to all married couples seeking a divorce. One or both spouses must live in the state for at least six months before either can file. This itself is less of a challenge for same-sex couples married outside of Florida than that posed by civil unions and domestic partnerships. These arrangements are similar but not identical to marriage, and many states, including Florida, are still struggling to adapt to them in the context of divorce. Orlando Family Team is dedicated to ensuring that the same marriage rights enjoyed by heterosexual couples – including the right to end that marriage by divorce – is extended to same-sex couples.
How Is Alimony Different for Same-Sex Divorcing Couples?
Alimony, also known as spousal maintenance, is intended to ensure that financially dependent spouses have the resources they need to get back on their feet after divorce. Designed in part to level the playing field between spouses of different means, alimony awards take many different factors into account. One of the most significant criteria a court will consider is the length of the marriage. Generally, spouses who were married longer will be granted more alimony or alimony for a longer period of time.
The primary difficulty for same-sex couples with respect to alimony is determining when the marriage began. As discussed above, this is further complicated by the nature of the union the couple may have obtained in another state. Establishing the date that a marriage began will ultimately affect the amount of alimony to which a spouse may be entitled. Orlando Family Team understands this, and we fight to ensure that courts recognize your marriage in the same sense that it would recognize anyone else’s.
How Is Property Division Different For Same-Sex Divorcing Couples?
Florida uses a concept known as equitable distribution to decide how marital property is split upon divorce. This means the court will divide property between the spouses based on what is considered fair. However, the court can only divide property that is determined to be marital. Generally, that means any property acquired by either spouse after the date of marriage.
Similar to the problem with alimony, the difficulty with same-sex equitable distribution is determining when the marriage began. The date of marriage could make a substantial difference in when assets are considered marital, if at all. This, in turn, will affect what each divorcing spouse ends up with. You deserve a family law attorney who will fight for you to be granted the same rights as those enjoyed by any other divorcing spouse.
How Are Child Custody and Visitation Different for Same-Sex Divorcing Couples?
The most painful part of any divorce is how the children are affected, and this is why custody and visitation tend to be the most controversial parts of the process. This is no less true for same-sex spouses with children than it is for heterosexual spouses. However, the legal relationship of the parents to the children is often more complicated.
Florida law presumes that children born to heterosexual married couples are the biological children of both husband and wife. The same is not necessarily true for same-sex parents, who may have children in one of several ways. One partner may have children from a previous relationship. Or, a spouse could adopt or become pregnant by artificial insemination. Regardless, in many cases only one party has parental rights, even if both are raising the child. That can make it difficult for the parent without legal rights to obtain custody or visitation.
If the partners adopted the child together during the marriage, this is less of a problem; the same-sex parents will have the same rights as a heterosexual couple. Since not all parents have taken this step, however, but have instead raised children with uneven parental rights, for them, child custody and visitation can be far more complicated. In all cases, the court will still have to decide what is in the best interests of the child.
While in theory, same-sex parents should have the same custody and visitation as other parents, this is still a developing area in Florida law. Orlando Family Team is familiar with the complexities of this area of domestic litigation, and we will argue for a same-sex parent’s right to participate in the life of his or her child.
Contact an Orlando Same-Sex Divorce Attorney Today
No divorce is ever easy, and the process is only further complicated when it involves unsettled areas of law. Orlando Family Team is dedicated to individualized legal solutions and advocating for all of our clients’ rights. Reach out to us today to schedule your consultation.