For fewer than 10 years, the LBGTQ community across the entire United States has had the federal right to marry whomever they want. However, marriage equality doesn’t just mean the right to plan a legal wedding with your partner. It also means the right to seek an equitable divorce under the law.
Some states, which took the step of legalizing same-sex marriage prior to the Supreme Court case of Brenner v. Scott, already had statutes and practices in place that address the unique concerns of same-sex parents in a divorce.
Florida was not one of those states, which means that same-sex marriage only became legal after the Supreme Court ruling. There is currently less than a decade’s worth of legal precedent to help guide couples who have chosen to end their same-sex marriage.
Child custody arrangements may be complicated in a same-sex divorce
In heterosexual marriages, Florida law presumes that the husband is the father unless informed otherwise. When a married woman gives birth to a child, her husband’s name ends up on the birth certificate. The same is not necessarily true in same-sex marriages.
After all, the other parent likely does not have a biological link to the child. In some cases, neither parent has a biological link to the child. In those scenarios, the time of the adoption may impact how the courts rule on custody issues. If only one of the spouses legally adopted the child, that could create an issue during divorce. Having both spouses adopt the child, even if one executes documents after their marriage, is the best way for couples to protect the parental rights of both spouses.
Typically, the courts want to protect the rights of all parents, but they have to focus on the best interests of the children and abide by the law. If custody proceedings become contentious, same-sex parents on uncertain legal footing may have a difficult battle ahead of them.
Asset division remains relatively similar, regardless of gender
The Florida laws on asset division were written without consideration to gender. Instead, they simply focus on instructing the courts in the best manner in which to properly divide marital assets. The gender-free language helps ensure that both husbands and wives received their treatment under the law. It also means that the law is easily interpreted as written to apply to same-sex couples.
Typically, you can expect to split any assets that you obtained during your marriage, as well as any debts. The courts will consider the asset division decision they make when determining child custody and potentially child support orders in your marriage as well.
Staying calm and trying to work things out amicably with your ex is often the best approach to any divorce. You should also plan to work with an attorney who understands this new and developing area of family law and will treat you with the respect that you deserve.
