Gay Divorce in Orlando & Florida
It’s difficult for gay and lesbian couples in Orlando and throughout Florida to divorce or break up. LGBT couples in Florida don’t have access to the wealth of protections and rights afforded to opposite-sex couples by the state’s divorce system. That’s especially worrisome for couples with children.
Getting married in a state where gay marriage is legal doesn’t help. I’ve talked to several LGBT couples in Florida who are genuinely surprised that they lack marriage and divorce rights despite getting married in New York, D.C., or somewhere else that offers it.
Instead, same-sex couples in Florida must rely on a hodgepodge of laws and legal procedures to take apart their relationship if it comes to that.
Ultimately, gay divorce in Orlando and throughout Florida is possible, but the exact legal solution that will be accepted varies from judge to judge. Let me know if you’d like help with your situation or have any questions.
Type of Court
When married couples get divorced, any legal disputes they have are handled in a family court designed to handle those cases efficiently. Gay couples without a legal relationship instead must take their claims to a regular civil court. The civil court will treat their disputes as if they were two unrelated people with a property ownership disagreement.
The exception is if the couple has children. Then, a family court will handle visitation and custody rights.
Written agreements: If the couple has a written agreement on how to divide the property, then a court will probably enforce it. The court will treat the couple as business partners, so the written agreement will probably be enforced even if it’s unfair to one of the partners.
Also, things said in a will are not written agreements. The fact that one partner provided for her ex in her will does not mean that she has to provide for her ex upon breaking up.
Oral agreements: A court would probably enforce an oral agreement about how to divide property, but it’s hard to prove that an oral agreement was made. So in reality, a court will likely not recognize it. Unfortunately, a lot of legally unrecognized gay couples rely on oral agreements because it may seem pessimistic to put in writing what happens if they break up.
If the couple agrees how to divide up their property, then there’s no need to go to court or file any papers. But watch out–if the couple has children, they shouldn’t settle with a private agreement on custody and visitation. They should still get a court to formalize those things.
Joint ownership: Without an agreement saying otherwise, things owned jointly will be divided 50/50. This is true even if one partner paid a greater share of the property than the other. So, if one partner contributed 75% to the price of a jointly-owned house, a court would still probably declare 50/50 ownership. Or, if one partner contributed 75% of the funds in a joint checking account, a court would still assign 50/50 ownership.
Everything else: If there’s no joint ownership or any other agreement saying anything special about ownership, then each partner will own 100% of their own property. So each partner will be entitled to 100% of their own bank accounts, real estate, and tangible property.
Neither partner will be entitled to alimony payments from the other. Even if, like in many relationships, one partner chose not to work in order to take care of the home, that partner will still be out of luck.
Alternatives to Fighting in Court
To handle property disputes, I advise that couples try mediation or arbitration first. It’s a less contentious way of dividing property without the issue becoming public through the court system. In fact, in the domestic partnership agreements that I write for my clients, I almost always recommend a binding arbitration clause, or at least, mandatory, nonbinding arbitration before litigating over property in the event of a breakup.
Also available is the collaborative process, which I highly recommend over the traditional court fight. In a collaborative breakup, the attorneys that represent each partner agree to resolve the situation outside of court. That means neither side files any legal action against the other. If the two ex-partners can’t work something out, then the attorneys withdraw and new ones must be retained. Collaborative dissolution is not the first thing that couples think of when they separate, but it’s often the best.
How to Get Started
If you and your partner are separating, you should get legal advice about what your options and rights are. Contact me to get started. While my office is located in Orlando, I help people throughout the state of Florida.
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