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What are the legal issues with a same-sex divorce?

On Behalf of | Feb 15, 2022 | Divorce |

The success of efforts to obtain marriage equality in Florida for same-sex couples also brought new considerations with regard to divorce proceedings for these couples.

Florida divorce proceedings do not discriminate between heterosexual or same-sex couples. These couples have similar concerns and challenges and must meet the minimum divorce eligibility standard.

General requirements for divorce

Regardless of who is applying for the divorce, the residency requirements are applicable. At least one of the individuals seeking divorce must provide proof of Florida residency for a minimum of six months. Parties must also present proof of mental incapacitation or irretrievable brokenness to the court.

Challenges for same-sex divorce

The initial challenges a same-sex couple would face upon the choice to end a relationship became inapplicable once the state legally recognized these marriages. With this barrier removed, one of the leading concerns for couples looking to divorce now deals with the issue of child custody. The court regards the best interest of any children involved, though there is a tendency to deny visitation rights to individuals who are not the legal parent of the child. The biological connection to the child, without formal adoption by the other spouse, typically secures custody rights.

Under the law, it is difficult to seek visitation or custody when no legal rights to a child exist. Same-sex couples that chose to adopt often have a lengthy legal battle ahead when the paperwork only indicates one official adoptive parent. Sperm-donors do not have legal rights to a child in Florida, but unless second-parent adoption has occurred, the party that did not carry the child may not have legal rights to the child.