Sarasota Same-Sex Divorce Lawyers
If you are contemplating divorce as a same-sex couple, you might be curious about how Florida’s laws apply to your marriage. After all, same-sex marriage wasn’t recognized in Florida until 2015, so many LGBTQ+ couples are understandably concerned about how these laws may impact their ability to get divorced. In Florida, the same divorce laws apply to both heterosexual and same-sex divorces.
However, given the history of same-sex marriage in our state, the length of your official marriage might not be as long as the length of your relationship. This can affect certain aspects of your divorce, including property division and alimony. If you share children, then custody decisions may be complicated if both parents aren’t the legal parents of the kids. Our Sarasota same sex divorce attorneys can help you understand your rights based on the specific facts of your case.
At Luhrsen Goldberg, we offer strategic legal representation to clients throughout Sarasota County. We will help you understand your options and make more informed decisions about how to move forward with your Florida family law case. Reach out to our law firm today to schedule a consultation with a Florida same sex divorce lawyer.
How Florida Law Treats Same-Sex Divorce
Until 2015, same-sex marriage was not recognized in Florida. This meant that for most of Florida’s history, LGBTQ+ couples could not legally get married in our state. While some Florida residents may have traveled to other states to get married or enter into a civil union, they could not do the same in their home state.
However, the United States Supreme Court’s decision in Obergefell v. Hodges established marriage as a constitutional right for same-sex couples across the country. In 2022, the federal Respect for Marriage Act required the U.S. government and all state governments to recognize same-sex marriages.
As a result, same-sex marriages in Florida are treated the same as opposite-sex marriages. This applies to both getting married as well as getting divorced. When an LGBTQ+ couple files for divorce in Florida, they will be subject to the same laws as heterosexual couples.
To get a same-sex divorce in Florida, you must meet the residency requirement. At least one spouse must have resided in Florida for at least 6 months prior to filing for divorce. If you meet this requirement, you can seek a divorce in Florida.
Florida is a no-fault divorce state, which means that you need not allege wrongdoing as the legal basis for your divorce. Most couples will state that their marriage is irretrievably broken in their divorce filing. In some cases, you may be able to allege that your spouse has been mentally incapacitated for at least 3 years, which is the only other basis for divorce in Florida.
The process for a same-sex divorce will proceed exactly like an opposite-sex divorce. You will need to file a Petition for Dissolution of Marriage with the circuit court clerk’s office, pay the appropriate filing fee, and serve the paperwork on your soon-to-be ex.
If you agree about all of the issues in your divorce, including the division of property, alimony, and child custody, visitation, and child support, then you can seek an uncontested divorce. If you don’t agree on these issues, then you may ultimately have to go to trial if you can’t work out a marital settlement agreement on your own or through mediation.
While the process and laws are the same for same-sex divorces, the circumstances of your relationship could impact how your divorce proceeds. An experienced Sarasota same-sex divorce attorney can help you understand your rights and advise you on a strategy based on the facts of your case.
Property Division in Same Sex Divorces
Florida is an equitable distribution state. This means that all marital property and debts will be divided in a way that is fair based on the circumstances of your case. For same sex divorces, this can sometimes be a bit more complicated.
Florida law distinguishes between separate property and marital property. In a divorce, only marital property is subject to equitable distribution. Broadly, separate property is any asset owned by one spouse prior to the marriage or obtained during the marriage through gift or inheritance.
Florida law uses the date of a couple’s legal marriage when deciding how to classify marital assets and debts. For same sex couples who were in a committed relationship prior to 2015, this can affect how property is divided.
For example, consider a situation where a gay couple has shared a household and been in a committed relationship since 2010. They married in 2015. Any assets or debts that the couple has from before 2015 could potentially be classified as separate property, even if the couple jointly invested in things like a marital home or savings account.
These cases can be more complicated because couples may have commingled assets. For example, the house may be titled in one spouse’s name, but both spouses may have paid the mortgage jointly, or both may have contributed to home improvements. It is often necessary to trace the history of these contributions to determine whether things like the appreciation in value of the home could be classified as marital property, even if the house itself is separate property.
For retirement accounts, money earned before the marriage date is considered separate property, while money saved during the marriage will be marital property. A forensic accountant may be necessary to determine exactly what money was earned and what growth can be attributed to the period of the marriage.
This issue can also affect heterosexual couples who lived together and/or purchased property together before a marriage. However, given that same sex couples didn’t have the option to get legally married in Florida until 2015, it is more common in LGBTQ+ divorces. Our Florida same sex divorce attorneys can help you understand how the legal date of your marriage may affect your property division rights.
Alimony in Same Sex Divorces
In 2023, Florida eliminated permanent alimony. Under Florida’s new alimony laws, durational alimony is capped based on the length of the legal marriage:
- For short-term marriages of under 10 years, durational alimony is limited to 50% of the marriage length
- For moderate-term marriages of 10 to 20 years, it is capped at 60% of the marriage length.
- For longer-term marriages of 20 years or more, it is limited to 75% of the marriage length.
Because same-sex marriage was not legal until 2015, if an LGBTQ+ couple gets divorced in 2026 after marrying in 2015, then they would have a “moderate” marriage of 11 years even if they had been together for 20 years. This would mean that the maximum amount of alimony that one spouse could receive was 6.6 years, as opposed to 15 or more years if the entire length of their marriage was credited.
This is a substantial difference in the amount of alimony that one spouse may be entitled to receive. It can seem particularly unfair for couples whose delay in getting married was decided by the law rather than their own choice. In these situations, a Sarasota same-sex divorce attorney can argue that other relevant factors, such as pre-marriage financial dependence, shared household economics, and career sacrifices made by one spouse, should be considered when determining alimony.
Custody Issues in Florida Same Sex Divorces
In Florida, all custody and parenting plan determinations are made based on the best interests of the child. Shared parental responsibility is the default presumption in custody cases. However, if both spouses are not the legal parents of their child(ren), the same rules will not apply.
This often arises in same-sex marriages because LGBTQ+ couples often become parents in different ways. This may include adoption, one parent giving birth, assisted reproduction, or surrogacy. In these situations, the legalities become incredibly important.
For example, consider a situation where one spouse is the biological parent of their children and the other spouse never completed the adoption process to formally adopt their kids. In this case, the non-biological parent cannot enforce their legal rights in the same way as the biological parent. Similarly, if a child was born through surrogacy before the parents were married, each spouse will have to prove their legal relationship to the child in order to seek custody.
These cases are highly fact-dependent and require a careful legal strategy. Our Sarasota same sex divorce attorneys will work to develop a strong argument to protect your rights as a parent.
How Our Law Firm Can Help
While Florida’s divorce laws apply equally to same-sex couples, the simple reality is that factors outside of your control can impact your divorce. You might have a shorter legal marriage, a child whose legal parentage was never fully established, or joint property ownership before you could be legally married. These types of situations can impact the ultimate outcome of your case and require a thoughtful legal approach to protect your legal, financial, and parental rights.
Luhrsen Goldberg is a woman-owned and led family law firm serving clients in same-sex divorce matters in Sarasota County and beyond. We use our experience and knowledge of Florida law to help our clients get a just result. To learn more or to schedule a free consultation with a Florida same sex divorce lawyer, give us a call at 941-740-6473 or fill out our online contact form.