Getting divorced isn’t easy for anyone. However, same-sex couples getting divorced may experience unique issues that can further complicate their divorce case. In this article, we will discuss potential challenges LGTBQ+ couples may encounter and how those challenges might be addressed.
Florida did not legally recognize gay marriage until January 2015. However, you and your partner may have been together and living as a married couple before the legalization of same-sex marriage. While some states recognize that couples who have lived together for years as being married under common law, in Florida, common law marriages after 1967 are not considered valid. Thus, while you and your spouse may have been together for 15 years but only married for 5 years, you may struggle with the division of assets and alimony determinations.
Florida is an equitable distribution state, which means that a couple’s marital assets and debts will be divided fairly rather than equally. Marital assets include the items and property you have acquired as a couple; however, property that you acquired while together but not legally married may be considered separate property, which is not subject to division and is instead given to the person who owns the asset. If left to the court, property division determinations may not accurately reflect what property is considered marital vs. separate property.
To protect your assets in a same-sex divorce, you might consider attending divorce mediation with your spouse to reach an agreement. If you and your partner have a pre- or post-nuptial agreement, your assets may also be protected from division.
Courts consider the length of your marriage when determining the type, duration, and amount of alimony a party will be awarded. Marriages are considered:
As of writing this post in June 2022, the longest amount of time LGBTQ+ couples could have been legally married is 7 years and 5 months (or so). Thus, your marriage may be considered short-term or moderate-term when you have actually been together for years. Permanent alimony is rarely awarded in cases where the couple is considered to have a marriage of short or moderate durations.
Again, divorce mediation may be the best option for same-sex couples as you can take time to come to an agreement yourself rather than leaving the decision in the hands of the court. Filing uncontested can also ensure you both have a say in what happens concerning the various determinations in your divorce, since you must both agree on the terms outlined in an uncontested divorce agreement.
In same-sex divorces, child support and custody issues can be extremely complex, especially if one or both parties are not listed as their child’s legal parents. If both parents adopted their child, then they have the same parental rights, and child custody and support issues will not be as complicated. However, in cases where one parent has a biological relationship with the child or only one parent has officially adopted the child, the case can become very complicated.
Biological relationships with your children automatically grant a parent certain rights concerning custody. If one parent is biologically related to their child, they may try to use that relationship against the other parent, and in cases where the other parent (the non-biological parent) has not taken steps to legally adopt their child, they do not have any legal rights to have custody or visitation. Before getting divorced, non-biological parents should take steps to adopt their children to ensure they have equal, legal rights.
LGBTQ+ couples getting divorced may also suffer from explicit or implicit biases and prejudices. Bias inside or outside of the courtroom can complicate your case, especially if the biased party is a child custody evaluator, mediator, court official, or judge. Working with an experienced same-sex divorce attorney can be important as it relates to navigating and addressing biases, and your attorney should act as an advocate for you if you experience unfair bias or prejudices.
At Dale L. Bernstein, Chartered Law Office, our attorney has over 35 years of experience and is equipped to help you protect your rights and interests throughout the entire process. If you are filing or have been served divorce papers, we are here to assist you in:
To schedule an appointment with our team, call (727) 862-4411 or reach out online today.