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Custody In Same-Sex Marriages or Divorces

Posted by LEISA WINTZ | May 23, 2023 | 0 Comments

Same-sex couple and their son

Same-sex marriages have been legal in Florida since 2015 and they are handled much in the same way as a heterosexual marriage or divorce is handled. In this blog article, we will delve into the intricacies of custody in same-sex marriages or divorces, exploring the legal landscape, key considerations, and practical steps that couples can take to protect their parental rights and secure the well-being of their children. We will discuss various aspects, such as establishing legal parentage, determining custody arrangements, co-parenting agreements, and the significance of working with an experienced family law attorney who specializes in same-sex family law matters.

How Is Division of Property and Debts Handled in Same-Sex Divorces?

Under Florida law, all marital property is subject to an equitable distribution of 50/50.   However, in both instances, couples can have a prenuptial agreement or postnuptial agreement that addresses specific division of property owned by the parties to circumvent any presumed ownership of the property.  Any debt that has been created during the marriage is considered to be marital debt unless there is an agreement otherwise.

Who Pays Alimony?

Spousal support is handled the same way for all divorces.  The length of marriage is a determining factor as well as the need for one spouse to be granted spousal support and the ability of the other spouse to pay for spousal support.  There is a mathematical formula used in calculating child support in the State of Florida, but no such set formula exists when addressing alimony. Judges may have some discretion in determining how much and what type of alimony should be granted in divorces within the boundary of the law.

Important factors to be aware of as far as alimony is concerned in any type of divorce are:

  1. What was the standard of living during the lifetime of the marriage?
  2. Was there an agreement that one spouse would be the higher wage earner while the other spouse worked part-time or didn't work at all perhaps because they were the primary caretakers of the child?
  3. Did one of the parties have some physical or emotional condition which prevented them from working?
  4. What types of alimony are available

How is Custody In Same-Sex Marriages or Divorces Determined?

If one party has given birth to a child during the marriage, it is presumed that the other party is the legal “other parent” of the child.   However, since our laws are still a bit lagging as to how non-traditional marriages are addressed in statutes, and in order to avoid any confusion whatsoever, there are a couple of ways to ensure that the non-birth parent, or parents, have a clear definition of their role in a child's life and their rights as a legal guardian/parent are clearly defined.

  1. A petition for a declaratory judgment of parentage can be filed with the court if the parties were married at the time of the child's birth.
  2. A joint petition for adoption by a second parent can be filed if the child was born before the marriage and there is only the mother's name on the child's birth certificate.
  3. A joint petition for adoption by a step-parent can be filed if the child was born outside of a marriage and there is another parent listed on the birth certificate. However, consent of that parent may have to be given for this type of adoption to go through.
  4. If there is a surrogate mother, a petition for adoption can be filed by both parties with the consent of the surrogate mother and/or biological father.

Who Pays Child Support?

There is no difference whatsoever in determining what child support or timesharing should be in any type of divorce.  There is a specific formula used according to Florida's guidelines that contain:

  1. The income of both parents
  2. The child's health and childcare expenses
  3. The standard basic needs for the child
  4. The standard of living for the child while the parties were married

If a child has specific medical or emotional needs, a judge may deviate from the child support guidelines to include any special circumstances.

As in all marriages and divorces, no matter who the parties are, Family Matters Law Group (FMLG) has the experience and knowledge to guide them through prenuptial agreements, postnuptial agreements, divorces, parenting plans, marital settlement agreements. Most of FMLG's cases are settled through their experienced mediation services which is an excellent way of avoiding costly and emotional trials.  Call our offices at 954-866-2920 to schedule your free consultation.

About the Author


Leisa Wintz originally began her career as a marriage and family therapist. Ms. Wintz went on to attend law school and started practicing family law in 2009. However, she quickly realized that many family law practices lacked the empathy and compassion she believed were necessary in order to achi...


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