Same sex couple contemplating divorce

Unique Considerations in Same-Sex Divorces

There have been great strides in regard to the promotion and protection of the rights of LGBTQ+ couples. With the same-sex marriage ban coming to an end in the landmark Supreme Court case on August 21, 2014, same-sex married couples enjoy the same rights as all other married couples. That being said, there are still some considerations that are unique to same-sex divorces and it is important to be mindful of them as they can have a significant impact on things like your family structure, parental rights, and financial well-being far after the divorce has been finalized.

Unique Considerations in Same-Sex Divorces

Child custody and support issues can be particularly complex in same-sex divorces. This is even more so true if one of the spouses is not listed as one of the child’s legal parents. When both spouses have legally adopted the child, then this is not so much an issue. However, in some instances, one of the spouses may be the biological parent of the child or only one parent officially adopted the child. In these kinds of cases, things can get complicated quickly. 

To be clear, you do not have legal rights to a child because you may be married to their biological or legal parent and you provide care for the child. This is a truth that some in same-sex marriages have found out the hard way when divorce proceedings are moving forward. If you are not the legal parent of a child, it will be nearly impossible for you to seek rights regarding child custody. In cases where one parent is biologically related to the child, they may even try to use this against the other parent. So, prior to getting divorced, parents in the same-sex marriage, particularly the non-biological parents, should make a concerted effort to adopt the children should they wish to pursue enforcement of parental rights when it comes to things like custody matters.

There are also unique considerations for same-sex couples who are divorcing when it comes to alimony. You see, the length of the marriage plays a big role in Florida alimony decision-making. The length of a marriage will determine the duration of the alimony award. A short-term marriage is considered to be one lasting less than 7 years. A moderate-term marriage is considered to be those lasting more than 7 years, but under 17 years. A long-term marriage is considered to be one lasting longer than 17 years and permanent alimony is only available in long-term marriage cases. The length of the marriage can become an issue, however, in same-sex divorces. The same-sex marriage ban was not ruled unconstitutional until August 21, 2014. One spouse may argue, however, that their marriage should be considered longer because they got married before the ban ended.

Despite the progress we have made regarding LGBTQ+ rights, however, biases and prejudices against same-sex couples persist. The legal system is not immune from such things. Same-sex couples seeking a divorce may face biased parties in the courtroom whether it be a court official, judge, or someone else. It is important to have dedicated legal counsel by your side to help navigate the complexities that arise when such prejudices present themselves.

Florida Family Law Attorneys

The team at Bernal-Mora & Nickolaou is committed to serving families and helping all who need their rights protected throughout the divorce process. Contact us today.

Andrew Nickolaou

Andrew Nickolaou, Esq., B.C.S., is a founding partner at Bernal-Mora & Nickolaou, P.A. He practices almost exclusively in divorce, marital and family law. Andrew also handles record expungements and sealings. If you have questions about this article, contact Andrew today by clicking here.