Same-Sex Marriage and Divorce

Family Law Attorneys Knowledgeably Serving Residents of Orlando

Among the legal rights traditionally accorded to married couples is the right to get a divorce. In the past, same-sex couples faced difficulty enforcing the right to divorce because certain jurisdictions did not recognize same-sex marriage in the first place. With the 2015 Supreme Court ruling in Obergefell v. Hodges, however, same-sex married couples will be able to get divorces according to the same rules as heterosexual couples. However, some unique issues may arise in connection with child custody. If you are concerned about an aspect of your same-sex marriage with regards to your children, or if you are considering a divorce in Orlando or the surrounding cities, the experienced family law lawyers at Nardi & Nardi may be able to help.

Marriage and Divorce Rights for Same-Sex Couples

In Florida, one of the spouses must live in the state for at least six months before filing for a divorce. Whichever spouse files for a divorce can do so in the Florida county where the parties last resided with the intent to remain married.

When both same-sex parents are the legal parents of their children, they have equal rights. Under F.S.A. § 61.13(3), the court can evaluate all of the factors affecting the children's welfare and interests to determine an appropriate Parenting Plan and time-sharing, or otherwise known as “custody”. In other words, the court will look at the best interests of the children, just as they do when the parents are heterosexual.

In Florida, the courts recognize that it is best for minors to have frequent and continuing contact with both parents. When possible, the court will order shared parental responsibility so that each legal parent retains his or her full parental rights and obligations. Shared parental responsibility has two parts: parental responsibility, which refers to the authority to make religious, medical, educational, or other critical decisions for the children, and time-sharing, which refers to time spent with the children. If the court finds that shared parenting duties would harm a child, the court may order sole custody for one parent as to one or both of these aspects of custody. A parent who has most of the time-sharing will likely receive child support based on a statutory formula that considers income, percentage time-share, and other expenses such as health insurance for the child and employment-related daycare.

Sometimes only one of the spouses in a same-sex marriage is the "legal" parent of one or more children. For example, a same-sex couple may have informally used artificial insemination using one partner's egg in order to have a child prior to getting married, back when same-sex couples were not allowed to adopt in Florida. If the couple never signed adoption paperwork to formalize the other parent's legal status, the other parent may not have the same rights as the biological parent.

The current state of the law is unsettled with regard to a same-sex parent who has never been formalized as a legal parent. In some situations, the law has not adequately protected the rights of a parent who is not a legal parent, and there are implications for child support as well. This area of case law is still evolving, however.

Seek Legal Guidance in Orlando When Pursuing a Divorce

Divorce is challenging under the best of circumstances, and it is usually even harder when children are involved. If you are getting a same-sex marriage or divorce in the Orlando area, you should consult an experienced attorney who understands the distinctive issues that may arise. Nardi & Nardi also represents clients considering divorce in Maitland and Winter Park, as well as other communities throughout Orange and Seminole Counties. Call us at 407-478-0074 or contact us online to schedule a consultation.

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