Florida occupies an interesting space where same-sex marriage is concerned. Same-sex marriage had been banned by constitutional amendment and prohibited by state law. A federal court ruled it unconstitutional just months before a June 2015 ruling by U.S. Supreme Court that same-sex couples enjoyed the same rights as heterosexual couples.
Although the law of the land allows same-sex marriage in all states, Florida still has a law on the books prohibiting it. That has not and should not stop gay couples from tying and untying the knot in the Sunshine State.
With the freedom of marriage comes the responsibilities of divorce should the marriage not last. Although divorce is never easy, it presents some unique challenges to same-sex couples. At Fournier Law, we help clients navigate these complexities. If you are considering a same-sex marriage or divorce, or if you have been served with divorce papers, we can help. We serve clients in Tallahassee, North Florida, the Big Bend region and throughout the State of Florida.
Although banned in the state prior to the Supreme Court Ruling, gay couples have been able to enjoy the same fundamental rights as heterosexual couples ever since. Those rights are recognized in Florida no matter which state you were married in.
Same-sex couples can file taxes jointly and benefit from their spouse’s retirement, health insurance, and social security benefits. Gay couples can also adopt children together. Furthermore, if they have a child while married, both spouses are assumed under the law to be the child’s parents, regardless of who provided the genetic material or the womb. These are all benefits that heterosexual married couples have enjoyed for a long time, but were denied to gay married couples.
With rights also come responsibilities. If they are married, same-sex couples can no longer just separate their lives if they no longer wish to live with each other. Like heterosexual couples, they must go through the divorce process to have their union dissolved according to the law.
Working with a family law attorney before you marry a same-sex partner—for example, drafting a prenuptial agreement—and with an attorney experienced with complicated divorces, could make both processes far less stressful.
Some of the most serious issues that arrive in a gay divorce concern not what happened while you were married but your relationship prior to same-sex marriage. If you and your spouse lived together as a married couple long before you were allowed to marry, you were likely combining assets and debts just like married couples do. However, since you were not legally wed, the court has no responsibility to recognize anything that happened prior to the legal marriage. If you are wondering how this might affect you, consider the division of assets process in divorce.
In Florida, all assets and debts acquired by a couple during the marriage are considered marital property and are therefore subject to equitable division in divorce. Property acquired by a person prior to marriage is separate property which is not subject to division in divorce. It remains the property of the person who acquired it and does not put assets on that person’s side of the equitable division ledger.
For example, you and your partner had been living together as a married couple for several years. Your partner’s parents left them a house in their will which was then deeded to your partner. There were two mortgage payments left on the house, and your partner made those from their bank account. After you married, your spouse did not add your name to the deed. Despite the fact that you both considered the house to belong to you both jointly, the court will likely not see it that way. The court will not consider the home to be marital property, but rather separate property owned by your spouse. In a contentious divorce, your spouse will probably be happy to accept it as such.
Child custody can also be an issue. For example, if you and your partner decided to have a child prior to your marriage, the child’s birth certificate will reflect only the biological partner’s name. If you are not the biological parent and you never formally adopted the child as you were allowed to do under the law once you were married, you have no right to custody or visitation in divorce. If you are the biological parent, you may be concerned because your divorcing spouse also has no obligation to provide child support.
Even long-term relationships will not get the benefit of duration in divorce. Length of the marriage is a key consideration in the court’s awarding of alimony. In general, the longer the marriage, the longer the alimony period for the spouse at an economic disadvantage after divorce. Furthermore, the court has latitude with what it considers “equitable” in property division, using length of marriage as a factor. Although a couple might have lived together as married for decades prior to marrying, only the length of the marriage must be considered by the court.
Same-sex couples can overcome many of these unique issues in divorce by submitting an agreement for court approval regarding property and debt division, child custody and support, and alimony. You will benefit in negotiating an agreement if you have an experienced family law attorney representing your interests.
The attorneys at Fournier Law leverage their experience for clients in same-sex marriage and divorce in Tallahassee, North Florida, the Big Bend region, and throughout the State of Florida. Reach out to our office today to schedule an appointment.
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