It’s important to have an experienced family law attorney on your side.
At McMichen, Cinami & Demps, our team has more than 50 years of combined experience handling divorce matters, including those for LGBT couples.
We know how difficult this time can be, and we’re prepared to do everything we can to achieve the best possible results for you and your family.
Our firm offers a free consultation, so please do not hesitate to call us to schedule yours today.
Our Orlando LGBT divorce lawyers would be happy to discuss your legal rights and options and answer any questions you might have.
Table of Contents
Legal Status of LGBT Divorce
When it comes to LGBT (lesbian, gay, bisexual, and transgender) divorce, the legality of same-sex marriage has historically played a major role in the process. As you may or may not know, same-sex marriage has not always been allowed in Florida.
However, in 2015, the U.S. Supreme Court struck down all state laws that prohibit same-sex partners from marrying.
The state also allows spouses of same sex-marriages to get divorced. The process has the same rules and requirements as heterosexual divorce.
Same-Sex Marriage in Another State
Keep in mind that if you want to get divorced in Florida, it typically doesn’t matter if you were legally married in another state. This is true even if you were married at a time when same-sex marriage and divorce were not legal in Florida.
In fact, the Florida Supreme Court has specifically ruled that the courts will grant divorces for out-of-state marriages that were entered into prior to 2015. But, note that this ruling likely does not apply to the dissolution of a civil union. For this reason, if you entered into a civil union in another state it can be helpful to reach out to an attorney for guidance.
Requirements for LGBT Divorce
Now, there are some basic requirements for couples that wish to obtain a divorce in Florida. Note that these rules apply to both same-sex married couples and heterosexual couples, and are as follows:
At least one spouse must have lived in the state of Florida for at least six months prior to filing for divorce
The petition for divorce must be filed in the county where at least one of the spouses currently live, and
The couple must have legal grounds for divorce.
Bear in mind that Florida does not recognize fault-based grounds for divorce, such as cruelty or adultery. In fact, there are only two grounds for divorce in the state. One is based on the mental incapacity of a spouse, and it requires the other spouse to offer medical evidence to prove this condition.
The other is based on the marriage being deemed “irretrievably broken.” Again, this is considered no-fault, which means that neither spouse needs to be found to blame for the collapse of the marriage. You also do not need to provide any specific reasons for wanting to divorce.
Property Division Following Same-Sex Divorce in Florida
One of the major issues in any divorce is the division of property. This includes the marital home, money in bank accounts, cars, and other personal property. If a couple has a prenuptial agreement, the court will consider whether or not this contract is enforceable.
Note that only property acquired during the marriage will be part of the property division. This means that items received before the marriage will continue to be owned by the spouse that acquired the property. This also applies to gifts and amounts received as inheritance during the marriage.
Keep in mind that Florida is what is known as an equitable distribution state. This means that marital property will be divided on the basis of fairness rather than equally between the couple, like some states. In determining what is a fair distribution, the court will consider factors such as:
The length of the marriage
Contributions that each spouse made to the marriage, and
Each spouse’s overall economic situation.
This can be a complicated – and hotly contested – issue in any divorce. For that reason, it’s best to have an experienced Orlando family law attorney help you navigate the process.
Spousal Support for Same-Sex Couples
Courts in Florida also have the authority to order spousal support, or alimony, to one spouse. This is typically an option when there is a financial disparity between the couple, and one spouse would suffer without economic support.
Keep in mind that alimony is typically not awarded if both spouses make roughly the same amount of money. Further, alimony is also not usually ordered if a spouse has the ability to earn as much as the other spouse. In other words, the court doesn’t want to encourage one spouse to not support him or herself.
In calculating a spousal support obligation, the court will consider several factors including:
The length of the marriage
The standard of living enjoyed during the marriage
The ability of each spouse to work – taking into account physical and mental health
How other property was divided during the divorce, and
Contributions each spouse made during the marriage – including household chores and child care.
A judge can also consider any other factors that might be relevant to the case at hand.
Parenting Plan for Spouses with Minor Children
Note that if you and your spouse are parents of any minor children, custody and visitation will need to be addressed. In Florida, same-sex parents have the same rights and responsibilities when it comes to parenting as heterosexual couples.
It’s important to first understand that the state recognizes two types of custody. This first is known as physical custody, which refers to which parent the child primarily lives with. If this is divided equally between the parents, the arrangement is referred to as joint custody.
However, if physical custody is not shared 50/50, the parent with the majority of overnights is generally referred to as the custodial parent. The other parent is known as the non-custodial parent, and the time he or she spends with the child is considered visitation.
Now, the same rules apply to legal custody. In Florida, legal custody refers to the authority to make major decisions for the child. Examples include those related to medical care, education, and religion. If these decisions are shared, this means that both parents must agree on these matters. But, legal custody can also be awarded solely to one parent.
Once these custody determinations are made, they become part of the parenting plan. This is a detailed statement that sets forth where the child will live, how time-sharing will work, when and where any visitation will occur, how major decisions will be made, and how each parent will communicate with the child.
How Custody Determinations Are Made in Orlando LGBT Divorce Cases
As you can see, child custody matters can be complicated. In making these determinations, the court will focus on the best interests of the child. This involves considering several factors, such as:
Which parent had been providing childcare
The mental and physical health of each parent, and
The child’s participation in school and community activities.
Keep in mind that if one parent is not a legal nor a biological parent, that person does not have the same custody rights. These cases can be complex, so it can be helpful to consult with an Orlando child custody attorney if you have any questions.
Child Support for Same-Sex Parents
In Florida, both legal parents of minor children are obligated to provide financial support. The amount of the support obligation is based on how much each parent would contribute to the child’s upbringing if the couple was still living together. The total obligation is then divided between the parents based on their respective incomes.
Note that in calculating income, the court will consider all money a parent receives, including:
Social security benefits.
The support obligation is then adjusted based on any child-related expenses directly paid by each parent. This includes costs such as health insurance and daycare. Further, a parent will receive a reduction in the obligation based on the number of overnights he or she has with the child. This is because a parent is considered to be directly supporting any child that is living with the parent.
Keep in mind that unlike custody, child support is based on a fairly strict formula. This is set by Florida law, and in most cases, the court cannot deviate from the calculation.
Settlement Options for LGBT Divorce
As you might imagine, it’s always better if a couple can agree on the major divorce matters. This can avoid much of the uncertainty in having a court decide these issues. When couples are on the same page, they can create what is known as a settlement agreement. This gives the spouses more freedom in creating a workable solution for how they will move on after the divorce.
Now, it’s not uncommon for a couple to agree on certain parts of a divorce, but not others. An example would be agreeing on property division, but not child custody. In this case, the settlement agreement can cover the issues where the spouses have reached a consensus, with the remaining areas of disagreement left to be resolved by the court.
You also have the option of attending mediation. Sometimes this is ordered by the court, but you and your spouse can request this form of alternative dispute resolution. Mediation involves the use of a neutral third party to help you and your spouse work out your issues and reach an agreement. Note that, unlike the court, the mediator does not rule on these matters for you.
Contact Our Orlando LGBT Divorce Attorneys Today
A divorce is a serious matter for any couple. While the rules for same-sex divorce are the same as heterosexual divorce, you’ll want an experienced Orlando same-sex divorce attorney on your side that understands the law and how it applies to your unique situation. Contact our law firm today for a free, no-obligation consultation at (407) 898-2161.