When it’s time to end a marriage, all couples in Florida deserve equal legal protections and fair treatment. Whether you got married on a beach in Miami or in a private ceremony, the dissolution process applies equally to everyone.
If you’re part of the LGBTQ+ community and considering divorce, you might wonder how the process works for same-sex couples. Florida law treats all marriages equally in divorce proceedings. However, same-sex couples may encounter particular considerations that need careful attention and experienced legal guidance.
How Same-Sex Divorce Works in Florida
Since same-sex marriage became legal nationwide in 2015, Florida courts handle same-sex divorces under the same legal system as all other marriages. The process follows Florida Statute Chapter 61, which governs all dissolution of marriage proceedings.
Residency Requirements. To file for divorce in Florida, you must meet residency requirements outlined in Florida Statute 61.021
- Either you or your spouse must have lived in Florida for at least six months before filing
- You’ll need proof of residency through a valid Florida driver’s license, voter registration card, Florida identification card, or testimony from a third party
Grounds for Divorce. Under Florida Statute 61.052, you can file for dissolution of marriage on two grounds
- The marriage is irretrievably broken (most common)
- One spouse has mental incapacity that has been legally established for at least three years
Most divorces use the first ground. This is a no-fault basis, meaning you don’t need to prove wrongdoing. You simply need to show that the marriage cannot be saved and reconciliation is not possible.
What Makes Same-Sex Divorce Different?
While the legal process is identical, same-sex couples may encounter unique challenges that heterosexual couples typically don’t face. These differences often stem from the relatively recent recognition of same-sex marriage and the complex history of LGBTQ+ rights.
Marriage Date vs. Relationship Length. Many same-sex couples lived together for years or decades before marriage became legal. However, Florida law only recognizes the period from the date of legal marriage when determining factors like alimony eligibility and property division. Your pre-marriage relationship, no matter how long, does not count legally.
Documentation Challenges. Some same-sex couples may have:
- Fewer traditional documents like joint tax returns from early relationship years
- Differently structured finances due to previous legal limitations
- Property acquired before marriage was legally recognized
These factors can complicate property division and financial determinations.
Multi-State Property Issues. For couples who relocated to Florida from states where same-sex marriage was recognized earlier, questions may arise about which state’s laws apply. Florida courts generally apply Florida law to divorces filed here, but complex issues may occur when dealing with property acquired in other jurisdictions.
Property Division and Asset Distribution
Florida follows the principle of equitable distribution when dividing marital property. Under Florida Statute 61.075, the court begins with the presumption that marital assets and debts should be divided equally between spouses. However, the court can order an unequal distribution if circumstances justify it.
What Counts as Marital Property?
Marital assets include property acquired during the marriage, regardless of whose name is on the title:
- Real estate
- Vehicles
- Bank accounts
- Retirement plans
- Business interests
- Enhancement in value of non-marital property due to efforts during marriage
Property acquired before your legal marriage date is generally considered non-marital, even if you had been together for years. However, if non-marital property increased in value through joint efforts or marital funds during the marriage, that enhancement may be subject to distribution.
Factors the Court Considers
When determining property division, the court evaluates:
- Each spouse’s contribution to the marriage
- Economic circumstances of both parties
- Duration of the legal marriage
- Career sacrifices made by either spouse
- Desirability of keeping certain assets intact
For same-sex couples who faced historical barriers to traditional career paths or property ownership, these factors may require careful documentation and presentation.
Retirement Benefits
Retirement benefits earned during the marriage are marital property subject to division. This includes:
- Vested and non-vested benefits in pension plans
- 401(k) accounts
- Other deferred compensation programs
For couples who couldn’t legally marry until recently, proper documentation of when benefits were earned is essential.
Child Custody and Parenting Plans
When same-sex couples have children, custody matters can become particularly complex. Florida law prioritizes the best interests of the child, as outlined in Florida Statute 61.13.
Equal Time-Sharing Presumption (July 1, 2023). Courts generally start with the assumption that 50/50 time-sharing serves the child’s best interests. A parent must show evidence that equal time-sharing would not benefit the child to deviate from this presumption.
Establishing Parental Rights. Challenges arise when only one spouse is the biological parent or children were conceived through assisted reproduction, donors, or surrogates. Key documents include adoption records, surrogacy agreements, reproductive documentation, and evidence of intent to parent. Formal adoption by the non-biological parent provides the strongest legal protection.
Parenting Plans. Florida courts create plans covering:
- Time-sharing schedules
- Decision-making authority
- Communication methods
- The child’s relationship with each parent, developmental needs, and stability factors
Alimony and Spousal Support
Florida eliminated permanent alimony on July 1, 2023. Same-sex spouses have the same rights to seek spousal support as any other married couples, but the rules have changed significantly.
Types of Alimony
Florida now recognizes four types of alimony under Florida Statute 61.08:
- Temporary Alimony supports a spouse during the divorce process, helping maintain stability until the divorce is finalized.
- Bridge-the-Gap Alimony provides short-term support for up to two years, addressing identifiable, short-term needs and helping with the transition from married to single life.
- Rehabilitative Alimony assists a spouse in gaining education or skills needed for self-support. Awards are limited to five years and require a specific rehabilitation plan.
- Durational Alimony provides economic support for a set period based on the length of the marriage. It cannot be awarded for marriages under three years.
Alimony eligibility is based on the legal marriage duration, not total time together. For example, couples together 15 years but married 5 years may be treated as a short-term marriage, affecting the type and length of alimony.
Marriage Duration and Limits
Florida measures marriage duration from the legal marriage date to the filing date:
- Short-term: less than 10 years
- Moderate-term: 10–20 years
- Long-term: 20 years or more
Durational alimony cannot exceed 50% of a short-term marriage, 60% of a moderate-term marriage, or 75% of a long-term marriage. Extensions beyond these limits are allowed only in exceptional circumstances with clear evidence.
Determining Alimony
The court first confirms that the requesting spouse needs support and the other spouse can pay. Then it considers factors including:
- Length of the legal marriage
- Standard of living during the marriage
- Age and health of both spouses
- Income, resources, and earning capacity
- Contributions to the marriage, including homemaking, child care, education, and career building
- Adultery and its economic impact (as of 2023)
Prenuptial and Postnuptial Agreements
Same-sex couples have the same rights to enter into premarital agreements as any other couples. Florida Statute 61.079, the Uniform Premarital Agreement Act, governs these contracts.
A valid prenuptial agreement must be in writing, signed by both parties, and accompanied by proper financial disclosure. These agreements can address property rights and spousal support, but they cannot negatively affect a child’s right to support.
Prenuptial agreements are particularly important for same-sex couples who accumulated significant assets before legally marrying. They help clarify which property remains separate, define what becomes marital, and prevent complex property disputes if the marriage ends.
Couples who did not sign a prenuptial agreement can still use postnuptial agreements, which follow similar enforceability standards and clarify financial expectations during the marriage.
Custody and Domestic Violence
Domestic violence can affect any relationship, including same-sex marriages. Florida takes domestic violence seriously in all divorce proceedings, and these protections apply equally to LGBTQ+ individuals.
Impact on Divorce. Evidence of domestic violence can influence custody decisions, property division, time-sharing schedules, and other aspects of your divorce. Florida Statute 741.28 defines domestic violence and provides for protective injunctions.
Custody and Domestic Violence. Courts must consider domestic violence when determining custody:
- A conviction creates a rebuttable presumption that shared parental responsibility would harm the child.
- Even without a conviction, the court can consider a parent’s history of creating fear of imminent violence.
Accessing Help. Same-sex individuals have the same access to protective services, legal remedies, and injunctions. However, some may face additional barriers, including fear of discrimination or lack of awareness about available resources.
Financial Planning During Divorce
Divorce affects your financial future, and same-sex couples should carefully consider both immediate and long-term implications.
Financial Disclosure. Florida law requires full financial disclosure from both parties. Each spouse must provide affidavits detailing income, expenses, assets, and debts. Attempting to hide assets or provide false information can result in sanctions or an unfavorable outcome.
Documenting Discrimination and Career Impact. For same-sex couples who experienced employment discrimination or limited career opportunities, documenting these challenges can be important when seeking alimony or arguing for unequal property division. Evidence may include career sacrifices, educational interruptions, reduced earning capacity, or historical barriers to advancement.
Tax Implications. Consider the tax consequences of your divorce settlement. Property transfers between spouses are generally tax-neutral, but retirement account divisions, investment gains, and other assets may have specific tax treatment. Alimony for divorces after 2018 is no longer tax-deductible for the payor or taxable for the recipient.
Timeline for Divorce in Florida
Same-sex divorces follow the same timeline as other divorces. Uncontested cases can often be finalized within a few months, while contested cases involving disputes over property, custody, or support may take a year or longer. Florida also requires a 20-day waiting period after the respondent is served, and the court can issue temporary orders for support, time-sharing, or use of the marital home while the case progresses.
Particular Considerations for LGBTQ+ Couples
Same-sex couples may face unique challenges that require special attention during divorce proceedings. Social stigma, family rejection, and discrimination can create additional emotional and practical difficulties during an already stressful time.
Name Changes and Gender Identity. If you or your spouse changed your name, especially due to gender transition or adopting a chosen name, ensure all legal documents are correct. Inconsistent documentation can create complications in court, so update identity documents as needed.
Transgender Individuals. Court filings should reflect the correct names and pronouns. Be prepared to address any questions or confusion regarding documentation or identity.
Dealing with Third Parties. Financial institutions, employers, and other third parties may need confirmation of the validity of your marriage and divorce. Keep legal documents readily available and know your rights if you encounter resistance or discrimination.
Benefits and Insurance. Divorce can affect benefits, health insurance coverage, life insurance, and retirement account beneficiaries. Some organizations may create additional hurdles if they were previously reluctant to recognize same-sex marriages, so careful review and documentation are essential.
Key Takeaways
- Same-sex divorces in Florida follow the same legal process as all other marriages under Florida Statute Chapter 61.
- Property and retirement benefits acquired during the legal marriage are subject to equitable distribution, but pre-marriage assets may require careful documentation.
- Child custody and time-sharing decisions prioritize the best interests of the child, with special attention for non-biological parents and families formed through assisted reproduction.
- Alimony eligibility and type are determined by the duration of the legal marriage, with temporary, bridge-the-gap, rehabilitative, and durational options.
- Prenuptial and postnuptial agreements provide important protections for clarifying property rights and financial expectations.
- Domestic violence protections, financial disclosure requirements, and access to benefits and insurance apply equally to same-sex couples, though unique challenges may arise related to name changes, gender identity, or discrimination.
Frequently Asked Questions
Can I get divorced in Florida if I was married in another state?
Yes. Florida recognizes out-of-state marriages and allows divorce as long as you meet residency requirements.
What if my spouse and I were together for years before we could legally marry?
Florida only counts the period from your legal marriage date for alimony and marriage duration classifications. Contributions during your entire relationship may still be considered for property division.
How does adoption affect child custody in same-sex divorce?
If both spouses legally adopted the child or the non-biological parent completed a second-parent adoption, both have equal parental rights. Without legal adoption, the non-biological parent may face challenges in securing custody or visitation.
Can we use mediation to resolve our divorce?
Yes. Mediation is available to all divorcing couples in Florida and can help resolve disputes privately, efficiently, and with less emotional and financial stress.
What if we have property in multiple states?
Florida courts can divide property located anywhere, but real estate or assets outside Florida may require coordination with courts in other states to enforce or transfer ownership.
How do transgender rights affect divorce proceedings?
Transgender individuals have the same divorce rights as anyone else. Ensure all court filings use correct names and gender markers and update identity documents if needed.
Will our divorce be public record?
Yes. Divorce proceedings are generally public, but the court can seal or redact sensitive information to protect privacy or safety.
Contact Figueroa Law Group, P.A.
Going through a divorce is never easy, and same-sex couples may face additional complexities. At Figueroa Law Group, P.A., we understand the unique challenges facing the LGBTQ+ community and are committed to protecting your rights throughout the process.
Our team has extensive experience handling same-sex divorces in Melbourne, Indian River County, and throughout Central Florida. We work closely with every client to develop strategies that protect their interests and prioritize their children’s wellbeing.
Do not face this challenging time alone. Whether you are dealing with property division, child custody disputes, or need guidance on your legal options, we are here to help. Contact us today to schedule a consultation and take the first step toward protecting your future.