Will My Sexual Orientation Affect My Equitable Distribution or Alimony Award?


In any divorce case, the court will need to distribute the marital property of the parties and determine if there is a need and ability to pay alimony. Although difficult topics in any divorce, these items may be even more burdensome in a same sex couple’s litigation. Equitable distribution and alimony are time sensitive topics. This meaning the time when the couple was married, and the time the couple filed the petition for divorce is critical in any equitable distribution and alimony determination. This may seem simple at first glance as you can verify the date of marriage from a marriage certificate and a date of filing through the petition. However, with many homosexual couples, their relationship began much earlier than the legalization of marriage, some maintaining a marriage like relationship, where they accumulated property, children, and built lives together, 10 plus years prior to the legalization of marriage in any state in America. Therefore, their duration of a relationship may in fact be much longer than what the court recognizes, causing a large disparity in equitable determinations. If you fear that your same sex divorce may run into these issues, regarding the length of your relationship and marriage, contact a Florida Divorce Attorney. We will be able to fight for you and protect your rights to certain property and equitable awards during the divorce process.

Beginning with alimony, it is important to note distinctions. Within Florida there are three separate terms of marriage; short, moderate, or long. Short term, is a marriage that lasts less than 7 years, moderate is between 7 and 16 years and a long term marriage is one that lasted 17 or more years. Fla. Stat. Chapter 61.08(4). This timeline is particularly important with alimony, as a long term marriage is one that receives the presumption of permanent alimony, as long as the court deems it appropriate. Id. However, in Florida, same sex marriage was not recognized till 2015, around the same time same sex marriage was nationally recognized. If the couple was married in Florida, the longest marriage to date would be a maximum of 5 years. This falls within the short-term marriage category which has the presumption of no permanent alimony, absent exceptional circumstances. Further, even if a couple was married in Massachusetts, the first state to recognize gay marriage, in 2003, they would be on the tilting edge of a moderate to long term marriage. However, the issue remains that many homosexual couples actually maintained a marriage like relationship for years prior to their marriage date. Therefore, a couple could have been living together, raising children together, one maintaining the household while the other was the designated bread winner for 15 years and then were married when it became legal in 2015 and would only be recognized as being married for 5 years. That leaves the spouse who stayed home with the children and took care of home at a severe disadvantage because they must now overcome the presumption of no alimony award.

Similarly, distributing assets is a critical point in a divorce proceeding that revolves around the date of marriage. When distributing assets, the court looks to what is considered a marital asset or liability vs a nonmarital asset or liability. A marital asset is defined as all property acquired during the course of the marriage, regardless of ownership or title. Fla. Stat. 61.075. Simplified, one spouse may buy a car solely in his or her name, however, if it is done after the marriage date, then the car is also an asset or liability of the second spouse. This once again becomes a point of contention in a same sex divorce as the couple could have been together for years prior to marriage and bought a house, a car, or boat all in one spouse’s name prior to the legal date of marriage and all three of those assets would be considered nonmarital assets and be awarded to the spouse who’s name is on the title. This would cause an unequitable distribution of what would be marital assets had the couple been married.  

It is important to obtain the advice and counsel of a Florida Divorce Attorney who is able to recognize the argument and injustice that comes with the same sex marriage timeline. The issue within these distribution tactics based around the marriage date involves the legality of couples becoming married. Therefore, you will need the assistance of a Florida Divorce Attorney who can argue your needs to the court or negotiate a settlement to make up for this time that you may have been engaged in a marriage like relationship, absent the marriage title. We recognize that couples should not be punished for the timeline of their relationship in correlation to the timeline of legislation and are willing to fight for your rights during this process.

Speaking to an attorney at our Florida office is free of charge, and we accept calls 24 hours a day, 7 days a week. Contact us at 850-307-5211 or complete an online contact form to get in touch with a member of our team today.

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