Same sex marriage was has been legally recognized in Florida since 2015. A federal court ruled Florida’s ban on same sex marriage was unconstitutional affording same sex couples the right to marry, regardless of sexual orientation. The freedom to marry however comes with the responsibility of divorce should the marriage not last. The laws regarding same sex marriage and divorce is still in its infancy.

Judges are often left with little-to-no guidance on how to rule in same sex divorce cases. Florida law affords same sex couples the same rights as heterosexual couples with regard to divorce, child custody and all other facets of family law, however a same sex divorce case may involve issues that rarely, if ever, arise in a heterosexual divorce. At Trusik Law Firm, we understand the role domestic partnerships and civil unions have played in same sex.

With the help of an experienced family law attorney like Alenna Trusik, many of the unique challenges of same sex divorce can be overcome.

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Because same sex marriage is relatively new in Florida, many couples were involved in long-term relationships that didn’t coalesce into marriage until after 2015. The length of the marriage is a key factor in determining whether a spouse is entitled to support from the other. The longer a couple is married, the more likely it will be that one spouse or the other will be entitled to alimony. Same sex couples do not get the benefit of including the length of time they were together prior to the marriage as part of this determination. A couple may have lived together for decades prior to marriage, but only the length of the legal marriage can be considered by the court in making an alimony determination.

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Equitable Distribution

In Florida, all assets and debts acquired during marriage are considered “marital property” and subject to equitable distribution by a court. Property acquired by a person prior to marriage is considered the property of the person who acquired it and is not subject to division in a divorce. If you and your spouse lived together as a couple long before you were allowed to legally marry, you were likely acquiring assets and debts like married couples do. However, since you were not legally married, a court has no responsibility to recognize anything that happened prior to the legal marriage.

If a home was purchased in one person’s name prior to marriage and the other party was not added to the deed after the marriage, it is not likely the court will view this as marital property, irrespective of the fact you and your spouse considered the home to be a joint investment.

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Custody Challenges in Same Sex Divorce

The status of a person’s parental relationship determines their right to custody of a child in the state of Florida. Courts may deny visitation rights to anyone who is not the legal parent of a child

If you and your partner had a child prior to your legal marriage through sperm or egg donation, the child’s birth certificate will generally reflect only the biological parent’s name.  If your partner is the child’s biological parent, and you have not formally adopted the child, the biological parent will receive custody of the child and you have no right to custody or visitation in a divorce. Likewise, if you are the biological parent, you should be aware you may not be entitled to child support if your spouse did not adopt the child.

Family law issues are life-changing. The right guidance can help protect what matters most to you and lead the way to a better future. If you are in a same sex marriage, we will help protect your interests and guide you through the unique challenges of a same sex divorce with personalized strategies aimed at your unique goals.

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Ms. Trusik is a Florida Supreme Court Certified Family Law Mediator, is certified as a Collaborative Divorce Attorney, and is a Guardian Ad Litem for the Second Judicial Circuit.

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