Same-Sex Divorce & Child Custody Disputes

The landmark case Obergefell v. Hodges, decided in 2015 by the Supreme Court, granted numerous rights to same sex couples. These rights include the right to marry, and consequently, the right to divorce. Unfortunately, in many states including Florida, same-sex couples face numerous challenges including equal treatment under the law. Family law is emotionally faceted. Understanding the family dynamic and unique issues LGBTQ families face during divorce is critical to navigating a custody battle. The attorneys at Bubley & Bubley, P.A. specialize in family and estate law for all families, including same-sex couples. We provide assistance with divorce, annulment, child custody and child support orders, as well as same-sex estate and trust plans.

Equitable Distribution & Beneficiary Allocation

Upon divorce, couples have to make many difficult decisions regarding housing, childcare, education and income. There are also additional decisions to be made that are not always self-explanatory. For same sex couples, obtaining a life insurance policy and naming a same-sex partner as a beneficiary can be challenging. Similar issues are manifested when applying for health insurance and other benefits. Consequently, the divorce process and all items it entails can be frustrating for same sex couples seeking dissolution of the marriage. In Florida and other states, only a handful of cases have been heard regarding same sex divorce and custody. Because there is limited precedent on the matter, it’s critical you retain counsel to assist you with the divorce process.  Regarding property distribution, many married couples commingle funds or purchased real or personal property together.  Many same sex couples shared a home and personal property for years prior to eligibility for legal marriage. This can present challenges when property is evaluated for financial statements and drafting of the MSA, or marital settlement agreement, because it was jointly held, but prior to the legal marriage.

If you are considering divorce or perhaps are just now contemplating marriage, it can be helpful to draft a prenuptial agreement prior to officially tying the knot. This allows couples to expressly dictate what property is joint and what is a gift, inheritance or sole property. Couples can also decide how they will obtain insurance policies and handle joint finances. Postnuptial agreements can also be drafted and are recognized as binding in Florida. If you have neither a postnuptial or prenuptial agreement and are prepared to file for separation, it’s crucial you contact a law firm familiar with LGBTQ divorce and family law. Our firm understands the myriad of hurdles when determining how to equitably distribute and value property in a divorce and is ready to meet the challenge of assisting same-sex couples seeking marriage dissolution.

Jurisdiction & Alimony Determination

Courts must have jurisdiction in order for a judge to preside on a divorce and custody case. Jurisdiction is determined based on where the parties were married or currently reside. If the parties are already separated and live in different counties or states, it can present a quandary. In addition, same-sex couples face difficulty in some states because of logistical challenges. Same sex marriage only became legal throughout the United States in 2015. Usually, the state that issued the civil partnership marriage license has jurisdiction over divorce proceedings.

In addition, awarding alimony and partnership support is also convoluted. In Florida, the alimony determination standard is based on several factors, including financial need, education level and earning potential.  Fla. Stat. § 61.14 (2019). The issue is that courts do not weigh time, effort, expense, education or income level of the parties prior to the marriage, even if they cohabitated for decades prior to becoming domestic partners. Courts only look to conduct during the marriage, and the ability for the parties to be self-sufficient after divorce. This can result in an unfair distribution of assets or disadvantage for the unemployed  or disadvantaged party.

Schedule a Consultation Today

There are many hurdles ahead for all divorced couples, and special considerations for same-sex couples seeking dissolution of their marriage. If you are facing a divorce or custody battle and need assistance with filing a complaint, drafting a marital settlement agreement or a parenting plan, contact our Tampa same-sex marriage attorneys at Bubley & Bubley, P.A. We also offer estate planning services and we are dedicated to meeting the needs of our clients. Call today for a consultation to discuss your options.

Resource:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.14.html

https://www.bubleylaw.com/covid-19-child-custody-support-modifications/