The U.S. Supreme Court case of Brenner v. Scott ensures same sex marriage is recognized throughout the country, but several legal issues remain, especially in the event that the marriage ends in divorce. For example:
- What are the rights of a non-biological/non-adoptive parent?
- For alimony and equitable distribution purposes, when did the marriage begin if the parties had a civil union or domestic partnership before the Brenner case legalized same sex marriage?
- Is a domestic partnership agreement enforceable as a premarital agreement?
Divorce is always complicated. However, due to many of the issues listed above, same sex divorce cases can become even more complex. If these issues apply to you, consult with the experienced divorce awyers at Syprett Meshad at once to protect your rights. Please call 941-365-7171 today to schedule a consultation at our Sarasota office.
Rights of a Non-Biological/Non-Adoptive Parent in a Same Sex Divorce
When a couple has young children, some of the most important issues to resolve during a divorce involve child custody and child support. This is true whether the divorce involves a same sex couple or a heterosexual couple. Ultimately, it’s in the best interest of the child to be able to maintain a meaningful relationship with both parents. However, this can potentially be challenging in same sex divorce cases.
Under Florida law, the legal status of an individual’s parental relationship will determine whether they have any rights in custody and child support disputes. If only one spouse is the biological parent and the other spouse never legally adopted the child, that spouse will not have any parental rights during a divorce. This means the non-biological spouse will not be entitled to custody or visitation, nor will that parent have any financial obligation to pay child support.
However, denying the non-biological parent any rights to custody or visitation is usually not in the best interests of the child. You can circumvent these laws by crafting a shared custody and agreement that meets the needs of both parties. Child support can also be agreed upon in a same sex divorce agreement. However, for this situation to work, both parents must be able to agree on the terms of the child custody and support agreement. This is often challenging when divorcing couples have a significant level of animosity towards one another.
The best way to avoid this problematic situation is for the non-biological parent to legally adopt the child. This is the only way to ensure both parents’ rights are protected in the event of a divorce.
Financial Issues Associated with Florida Same Sex Divorce Cases
In Florida, the duration of the marriage plays a major role in the determination of alimony (spousal support) as well as the way property and assets are divided during a divorce. As a result, these issues are more complicated in same sex divorces, particularly when couples have entered into a civil union or domestic partnership prior to same sex marriage becoming legalized by the Brenner case.
The court will typically evaluate the length of a marriage when determining alimony. This factor not only impacts the amount of alimony awarded, but whether the recipient is eligible for permanent alimony. In Florida, permanent spousal support is only awarded for long marriages, which typically must be 17 years or longer. It may be challenging to prove the duration of a same sex marriage. The court may consider the following factors when determining alimony in a same sex divorce:
- The length of the relationship
- Whether a domestic partnership or civil union was entered into
- The fact that same sex marriages had been banned in the state prior to 2015
However, there is no guarantee that the court will use these factors when ruling on alimony disputes. Therefore, it’s crucial that you work with an experienced family law attorney who can help you navigate these complex and continually evolving laws.
In Florida, property division matters are governed by the philosophy of equitable distribution, which states that assets are divided in a fair, but not necessarily equal manner. Many same sex couples were in committed relationships long before the Brenner case made same sex marriage legal in Florida and as a result, have purchased property together and comingled assets prior to their marriage being legally recognized by the state. It may be complicated to determine whether these comingled assets and property will be considered marital property or separate property, and you’ll need to work with an experienced attorney who can help you navigate this complicated process.
Syprett Meshad Can Help
Same sex divorce is still in its infancy in the state of Florida. As a result, the laws are highly complex and ever-evolving. In order to ensure your rights are protected, it’s crucial that you work with an experienced family law attorney. The lawyers at Syprett Meshad have been closely following the updates to laws governing same sex divorces, including the rulings by courts on previous cases, and we can help you navigate the unique issues associated with these complex cases.
Contact our Sarasota Family Law Attorneys
If you need assistance with a same sex divorce, please contact Syprett Meshad using the form on this page or call 941-365-7171 today to schedule a consultation. We serve clients in Sarasota County, Bradenton, North Port, Venice Lakewood Ranch and throughout Florida.