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Special Issues in Same-Sex Divorce

With the Supreme Court’s June 2015 ruling in Obergefell v. Hodges, same-sex marriage was legalized throughout the United States. Up until that time, same-sex marriage was not recognized in Florida. While same-sex couples now have an equal right to marry (and, in turn, divorce) in Florida, there are still some special issues with regards to the law and same-sex relationships that bear mentioning. Here are some special considerations with regards to same-sex divorce:

Custody Issues

In same-sex relationships in which the parents have children, same-sex partners may both be legal parents to the children, one may be a legal parent, one may be a biological parent to the children, or the individuals may each have some other parental status. Law establishing the rights of same-sex couples with regards to shared children is continuing to develop, and may depend on whether the children were born into the marriage or domestic partnership or whether one or both of the spouses adopted the children.

Duration of the Relationship

Because same-sex marriage up until the recent Supreme Court decision had varying degrees of recognition in different states, even the simple question of “how long was the marriage?” can be a difficult one. A same-sex couple with a registered domestic partnership in one state and a marriage in another may be flummoxed attempting to divorce in Florida. The length of the marriage with regards to what portion was legally recognized is relevant to court decisions like alimony payments and the distribution of property, and determining it can be a challenge unique to same-sex marriage.

Spousal Support and Alimony

Historically, spousal support payments have been awarded to women, and were based on need. Courts have considered factors like the financial resources of each spouse and their employment (and employment potential). Judges may be hesitant to award spousal support in same-sex divorce when there are no or two female spouses. Courts also may hesitate when it is difficult to determine which spouse, if either, was a primary “breadwinner”, who contributed how much to his or her spouse’s education and career, or which spouse financed the household and childrearing. All of these considerations can affect spousal support awards granted or denied to either spouse.

Property Division

Another result of the lack of same-sex marriage in Florida until recently, same-sex couples may have a jumble of legally joint, commingled, and individual property in either or both spouses’ names. While this could certainly be true for the average opposite-sex couple as well, same-sex couples could face special challenges here. For example, in Florida, property acquired during a marriage is “marital” property to be divided. But considering the duration of marriage issue discussed above, it may be difficult to determine when property was acquired and by whom in relation to the legal marriage.

If you believe any of these special considerations for same-sex divorce may apply to your situation, you may benefit from assistance from an experienced attorney. Not every attorney has experience handling family law issues involving same-sex couples. At Schwartz | White, we have experience providing family law services to the LGBT community and representing individuals seeking divorce regardless of sex, gender, or sexual orientation. If you are involved in a same-sex marriage and are consider divorce or separation, consider contacting Schwartz | White in Boca Raton at 561-391-9943 today for a consultation.

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