It has been more common for our Florida Supreme Court Certified Mediators at Mediation of Coral Springs, Inc. to mediate divorce cases which involve same-sex marriages. In some instances, same-sex divorces can raise unique and distinct legal issues. To understand these issues, it is important to look at the historical background of the legality of same-sex marriages in Florida.
In 1977, the Florida Legislature state enacted legislation which banned same-sex marriage; and then in 1997, the Florida Legislature defined marriage as being the “union between one man and one woman” and it also prohibited Florida Court from recognizing same-sex marriages that were performed in other states. Then in 2008, voters approved an amendment to the Florida Constitution that banned not only same-sex marriages but also civil unions.
In Brenner v. Scott, 999 F. Supp. 2d 1278 (N.D. Fla. 2014), a U.S. District Court in the Northern District of Florida found state’s same-sex marriage ban unconstitutional. On January 6, 2015, the U.S. District Court issued a temporary injunction which legalized same-sex marriages in Florida.
On June 26, 2015 in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), the United States Supreme Court ruled that the fundamental right to marry is guaranteed to same-sex couples by United States Constitution and legalized same-sex marriage throughout the United States.
Our Florida Supreme Court Certified Mediators at Mediation of Coral Springs, Inc. have seen some major issues with alimony and equitable distribution of assets and liabilities.
According to Florida Statute § 61.08, the purpose of an alimony award is to assist a spouse in maintaining the standard of living that he or she was used to during the marriage as well as to help the individual get back on his or her feet. One of the factors that a court must consider is the “duration of the marriage” (§ 61.08 (2)(b)). § 61.08 (4) defines length of a marriage as “the period of time from the date of marriage until the date of filing of an action for dissolution of marriage.”
When a Florida Court determines the amount of alimony that a spouse must pay and how long the alimony payments will continue, one of the most important factors that Florida Family Law Judges considers is the length of the marriage. For same-sex couples, this is not always a practical consideration because the couple may have filed a domestic partnership in a different state or lived together monogamously prior to becoming legally married. As stated above, same-sex marriages have only been legal since 2015 – which does place some limitations on the lengths of a marriage.
Florida Statute § 61.075 defines which assets and debts are marital as well as which ones are non-marital. Under § 61.075 the court is required to divide all of the husband and wife’s “marital” property. Since Florida does not recognize common law marriages, the wedding date is the beginning date of the determination as to which assets and debts are marital. Again the issue of “during the marriage” is important and since same-sex marriages have only been legal since 2015 this impact the distribution of assets.