Same Sex Divorce

As of June 26, 2015, thanks to the Supreme Court of the United States' ruling in the matter of Obergefell v. Hodges, the country now recognizes that same sex couples have the right to get married as protected under the 14th Amendment of the Constitution (the right of equal protection of law). This monumental decision on the equality of an rAmerican's right to marriage is one of the most important court decisions of the last 60 years.

By lifting marriage bans against same sex marriages upheld by many states in the country, it is now legal for same sex couples to get married. The fight for equal marriage began as early as 1970, when two men, named Jack Baker and Michael McConnell, were denied a marriage license in Minnesota (and some would argue the fight for marriage equality has been around as early as the 1950s).

With the legalization of same sex marriage comes the legalization of same sex divorce as well. In fact, after the Supreme Court's ruling was announced, the first same sex divorce was filed in Orleans Parish District Court in Louisiana.

In Florida, even though same sex marriages started to be recognized in January 2015, there were still ongoing legal battles to determine the right for a same sex couple's ability to get a divorce up until May 2015, discussed in the case of Brandon-Thomas v Brandon-Thomas.

In that case, the issue was whether Florida should grant divorces to same sex couples that were married out of state, since Florida had not legalized same sex marriage at that time. Thankfully, in a ruling made by the Second District Court of Appeal, same sex couples were granted the right to divorce in Florida, even if the State of Florida had not yet recognized same sex marriage.

Of course, this ruling was made a non-issue after the June 26, 2015 ruling by the United States Supreme Court.

Now that the legalities surrounding same sex marriage and divorce are settled, one may wonder if there are any issues still lingering around specific to same sex divorce. For instance:

  1. What if the marriage took place in a different state because of previous legal bans?
  2. If a marriage occurred before June 26, 2015, will there be any remaining legal issues?
  3. What are the issues surrounding same sex divorces as they relate to previous definitions of civil unions, as opposed to fully granted same sex marriage?
  4. Will there be issues around adoptions that occurred before the Supreme Court's same sex marriage ruling?

While there are specific issues that may be unique to same sex marriage, that does not mean that in the eyes of the law there would be differences. Most, if not all, issues should be handled in an equitable way, similar to a marriage between a man and a woman. Legal advice should be able to adhere to this line of thinking, otherwise it would be in your best interest to seek out other legal counsel.

Issues of alimony, division of assets and liabilities, child support, parental responsibility and visitation, are all handled in the same manner as any other divorce, and it would be in a person's best interest to hire a capable attorney to protect your interests. It also should be noted that a same sex couple planning to get married may want to consider having a pre-nuptial agreement drafted and signed prior to a marriage to protect their assets going into a marriage.

Not only has Vilar Law handled hundreds of divorce cases, but we also take pride in the treatment of our LGBTQ clients. We handle all of our clients with care, attention and compassion.

Please contact the Vilar Law offices at (305)373-8000, to evaluate your divorce.

This is probably your first time dealing with these important issues, but it certainly is not ours...

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