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Unique issues in LGBTQ divorce

On July 29, 2021 by

LGTQ flag

If you are thinking about getting divorced from your spouse in Florida, there are unique issues that you should know about. This article is designed to provide you information that you will need to navigate through this difficult time in your life. We will go over a few unique issues in a LGBTQ divorce and prepare you for the obstacles that will come up so you can be ready and know your rights.  

THINGS TO KNOW

Florida is a no-fault divorce state. This means that you do not have to prove that your spouse cheated on you, abused you, abandoned the marriage, etc., to get a divorce. You must however, first file a petition for dissolution of marriage in the county where you live. In order to be eligible for divorce, one spouse must be a resident of Florida for at least six months prior to filing a petition for divorce.

If your spouse is filing for divorce, you will be served the divorce papers by a process server. This is an individual whose job is to physically put the court documents in your hands. This serves as evidence to the court that the document was delivered.  After you have been served with divorce papers, you must file a response within 20 days. Do not wait. Contact a same-sex attorney immediately.

If you are the spouse who is being served, you should file a written response and what is called a “counterpetition.” This allows you to state your side of the case and what you want from the divorce. The filing fee for the counterpetition in Florida costs $295.00.

The party seeking the divorce must state that the marriage is irretrievably broken. If neither party contests the divorce, the divorce can be granted quickly. If a divorce is contested, and the parties cannot come to terms, the couple must appear in court in front of a judge who will decide the issues of divorce. It is best to get legal representation to help you through the process.

CHILDREN

Similar to other states, custody in Florida is determined with the best interests of the child in mind. There are different factors when children are involved that can pose unique challenges.

If you are the non-biological parent

In many cases, a same-sex spouse will assume that they have legal rights just because they are married and they take care of the child. It is extremely difficult to seek custody or visitation if one spouse is not the legal parent. The only way to get legal rights of your child is through an adoption.

If you have not adopted your child and you are the non-biological parent, you must first legally adopt your child to have any legal rights. If you don’t, you will lose custody and/or visitation rights. 

In Florida, a LGBTQ couple must be married to apply for a joint adoption.

Joint Adoption.

Joint adoption allows same-sex couples equal participation of the child’s upbringing. In Florida, LGBTQ couples must be married in order to be permitted to file for joint adoption.

If you are a non-biological parent and you have not yet adopted your child, you must do so before you get a divorce to get equal rights to your child. Click this useful article for a complete guide to LGBTQ adoption in Florida.

Father and son

LGBTQ divorce after a joint adoption

If you and your spouse have adopted your child, you both have the same parental rights as a heterosexual couple. A family attorney can help you protect those rights when your case lands in family court. In Florida, if the child is a minor, both legal parents are obligated to provide financial support. The total amount of child support will be determined by the parents’ income, the number of overnights the child is with each of you, health insurance, and any day care expenses there may be.

In Florida, child custody is referred to as “timesharing.” In the event you and your partner cannot agree to a timesharing schedule, the court will decide how timesharing is divided between same-sex parents. A Florida court will consider several factors when making a decision, here are just a few:

  • The moral fitness of the parents.
  • The mental and physical health of the parents.
  • Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought.
  • The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.

In the event that the parents cannot finalize a timesharing agreement, the court will create one for you.

ALIMONY

Alimony is defined as financial support where one spouse is ordered to pay the other spouse support as the result of divorce. In Florida, courts consider the length of a marriage to determine the duration of alimony. If a marriage lasts less than 7 years, it is considered a short-term marriage. If a marriage is longer than 7 years and under 17 years, it is considered a moderate-term marriage. If a marriage is longer than 17 years, it is referred to as a long-term marriage. Permanent alimony is available for long-term marriages. Generally, any marriage that is less than 17 years may be awarded alimony for a term that is half the length of the marriage.

The issue with alimony in same-sex divorce in Florida is proving the duration of the marriage. One spouse may argue that the marriage was longer, but not recognized by the same-sex marriage ban in Florida which was ruled unconstitutional on August 21, 2014 as a result of Brenner v. Scott and Grimsley v Scott.

As it stands in Florida today, judges look at the time in which a couple was legally married. Currently there are no standard guidelines in same-sex divorce laws in Florida that decide this issue. Because of this, we recommend you seek legal counsel from a alimony attorney to know all of your rights and get the alimony you are entitled to.

Property division

PROPERTY DIVISION

The problem with property division in LGBTQ divorce is that a couple could be together for 20 years and married only 3 years. This is a problem because the assets that were accumulated over the 20 years may not be counted when it comes time to divide the property in a same-sex divorce.

The hardest part in property division is deciding who gets what after so many years of being together in a relationship. If you and your spouse got married when LGBTQ marriage was not legally recognized, the property could legally be titled in one spouse’s name. If you leave it to the judge to decide for you, it can be time consuming, costly, and it may be hard to reach an agreement with your spouse. Even if you provide joint bank statements, a judge may only count the years you have been married to divide the property in a LGBTQ divorce. It is important to hire a professional same-sex divorce attorney to make sure the assets you have gained over the course of your marriage are divided fairly.

CONCLUSION

Although there are similarities to heterosexual and LGBTQ divorce, there are unique issues in same-sex divorce that you must be aware of. Getting a divorce is not an easy process to go through. Even if you have never mentioned the topic of divorce to your spouse, we highly recommend that you seek legal counsel. It can be hard to find a same-sex divorce attorney to help you fight for the custody of your child.

At Klein Law Group, we are a boutique law firm. Our areas of practice include divorce, alimony, custody and visitation, parental relocation, same-sex divorce, domestic violence, to name a few.  We are a group of compassionate professionals who will legally guide you through this difficult time. We make sure you know all of your options and proceed with the proper steps to make sure your rights are fully represented in court.

If you try to go through a LGBTQ divorce without an attorney, many things can go wrong. You could:

  • Lose custody of your child
  • Lose property that you are otherwise entitled to
  • Pay more in alimony than you have to

Get the legal representation you need to make sure your rights are protected. Call us now at 1-561-353-2800 or contact us online for a free 30-minute consultation. We are here to help you every step of the way.

Eric Klein

Eric is the Principal Attorney and President of Klein Law Group. He has spent over 25 years practicing law and guiding clients through some of the most challenging times of their lives.