Divorce is never easy, and for LGBTQ+ couples, it can be even more complicated due to legal hurdles at the state level that existed prior to the national Obergefell v. Hodges decision of 2015. The struggle to dissolve same-sex unions remains prevalent across the country even after that landmark Supreme Court ruling recognized same-sex marriage throughout the U.S. For instance, Florida divorce laws are the same for both same-sex and opposite-sex relationships, including the no-fault reasoning for divorce, so it is important for both parties to know their rights as they navigate the complex path to untying the knot and establishing their future relationship obligations.
One of the initial steps in the divorce process for LGBTQ+ couples is to dissolve all prior relationship statuses, which is more common since the right to marry legally was only granted nine years ago. This might include domestic partnerships, civil unions, or any other legally recognized relationships that may have existed prior to your current matrimonial union. In most states, failing to address your previous legal relationship statuses can lead to complications, added expenses, and delays in your dissolution of marriage.
LGBTQ+ couples may have been in a domestic partnership or civil union in another state for years before Florida law recognized them as legally married, so their relocation to Florida before 2015 did not grant them long-term spousal rights. This can create issues in divorce settlements regarding the fair distribution of premarital versus shared marital assets. The divorce court’s determination of spousal support and equitable division of assets and debts often depends on the length of the marriage: short-term if fewer than seven years, moderate length of seven to 17 years, and long-term being 17 years or more. Additionally, financial matters can present unique challenges for LGBTQ+ couples during divorce. Property division and alimony determinations may be influenced by the duration of the marriage and the legal recognition of prior relationships. Financial disparities due to discrimination in employment and other areas can further complicate the equitable distribution of assets. Due to the nuanced sections of family law, you should consult with a legal professional who can provide guidance on addressing these issues and work toward a fair settlement.
LGBTQ+ parents face added challenges as the legal definition of a “parent” is still being debated, and the complexities of child custody can be particularly daunting for them. In Florida specifically, courts view same-sex parents in divorce and custody claims similarly to opposite-sex parents. Still, there can be differences based on unique circumstances, such as if one parent is the biological parent and the other has not adopted the child or become a legal step-parent — or if a couple has jointly adopted the child or used surrogacy. These situations can complicate custody arrangements and the division of parental responsibilities, especially in many states where one parent may not have legal recognition despite being actively involved in the child’s upbringing.
Ensuring both parents have legal rights is crucial for the well-being of the children. Officers of the courts may not always be familiar with the dynamics of LGBTQ+ families, and biases can sometimes influence their decisions, making it essential for parents in these circumstances to present a clear and compelling case that demonstrates their commitment to the child’s best interests. This might involve providing documented evidence of the child’s relationship with both parents, highlighting each parent’s role in the child’s life, and ensuring that the child’s needs and preferences are considered, just as they would be in any other separation.
As with all marriage breakups, the emotional toll of divorce can be overwhelming, and LGBTQ+ couples need to seek support from friends, family, and mental health professionals. The added stress of navigating legal complexities can elevate emotional distress, making it even more crucial to have a strong support network available. Support groups specifically focused on LGBTQ+ individuals going through divorce can also provide valuable resources and a sense of community.
Ensuring love and marriage are accessible to everyone means also recognizing that the chances of divorce come with it. After all, true equality means having the same legal rights to tie the knot — and to untie it when things don’t work out. While ending a marriage happens to both LBGQ+ and heterosexual couples, the path to separation for the LGBTQ+ community features its own set of twists and turns. Here’s to equal rights in love, marriage — and, yes, even in divorce.
Rebecca L. Palmer, Esq. is a Family & Marital Law attorney practicing in Orlando, FL. She may be reached at rebecca@rlplawgroup.com.
