First Comes Marriage Equality — Then Comes Divorce Equality

Irene Annunziata

Two years ago, the U.S. Supreme Court decided United States v. Windsor and in so doing, opened the door for marriage equality in many states across the country.

Now the court is considering a challenge to same-sex marriage bans in four states and whether states must recognize same-sex marriages performed in other states. In the event the court rules in favor of marriage equality, same sex marriage will be legal in all fifty states and U.S. territories.

Even though marriage equality came to Florida earlier this year, the issue of divorce equality was unclear. Fortunately, it appears this issue has been resolved by a Second District Court of Appeal in Florida which ruled that Florida must grant a same sex divorce.

While it usually does not include a big catered party (except for the occasional Divorce Party), Divorce Equality is just as important as Marriage Equality. What is Divorce Equality? It is the ability of same sex couples to divorce. Why is Divorce Equality just as important? To not be able to divorce would keep a same sex couple’s financial affairs intertwined and more importantly would significantly impact the welfare and stability of a child parented by a same sex couple.

So now that gay couples can legally divorce, what does that mean? Simply put it means that same sex couples seeking a divorce from their spouse must file a Petition for Dissolution of Marriage in circuit court. The State of Florida is a "no-fault" state and therefore, it is not necessary to prove that your spouse did anything wrong in order for you to obtain a divorce. In fact, courts are authorized to grant you a divorce even if the other spouse does not want or consent to the divorce. All that's required to obtain a divorce in Florida is that one of the parties to the marriage must reside in Florida for six months prior to filing the Petition, the marriage must be "irretrievably broken" and one of the parties must testify to these facts under oath.

If you are the party who initiates the Divorce, you are the Petitioner. The other party is called the Respondent. After service of the petition, the Respondent has twenty days to file an official response; called an Answer. After the Answer is filed, both spouses are required to exchange certain documents. Once all required documents have been filed, the case is ready to be set for trial. A trial may last anywhere from a few hours to a few weeks depending upon the amount of evidence and the complexity of the issues involved. However, Florida Law requires that before trial, the unhappy couple must attend mediation where they are encouraged to negotiate a settlement of all the issues.

When people think about divorce, especially childless couples, one of the questions they ask is how is our property and debt divided? First, property and debt division is an important consideration in every divorce even if you do not always feel great about bringing it up and it is understandably one of the most troublesome issues in a divorce proceeding.

The court has the responsibility to fairly distribute the marital and non-marital property and debt of the spouses. Marital property and debt is generally any items acquired during the marriage. And no, it does NOT matter whose name the property is titled in or whose name the debt is acquired in. Many clients are surprised when I tell them that their 401k or pension is a marital asset and their spouse is entitled to fifty percent of the value of the retirement account from the date of the marriage to the date of the filing of the Petition for Dissolution of Marriage.

Also, many clients are surprised to find out that credit card debt incurred, during the marriage; in the name of one spouse only is a marital debt, for which both parties are generally equally responsible for in a divorce. On the other hand, non-marital property is pretty much everything that you owned before you got married.

In certain situations, alimony may be an issue. Alimony in a divorce is based primarily on two important factors: need and the ability to pay. Florida courts have the authority to grant alimony to either party in a divorce. The alimony award could be either permanent, rehabilitative, durational, bridge-the-gap, or a lump sum award.

In awarding alimony the Court must consider whether the spouse who is requesting alimony has the need for the support AND that the other spouse has the financial ability to pay support. Assuming that burden is met, there are several other statutory factors that a court can then consider in determining what, if anything would be a fair alimony award. Alimony award factors include but are not limited to, the standard of living established during the marriage, the duration of the marriage, the age and the physical and emotional condition of each party and the financial resources of each.

Also, if there are children involved, the court will need to establish a parenting plan. In determining a parenting plan, you and your former spouse must determine a time sharing schedule for your child which includes how many days will they spend with each parent, where will they attend school, how will the holidays and birthdays and other special events be shared and how much child support shall be paid.

Each situation has its own set of facts and its important when considering a divorce that you consult with an attorney experienced in this area of the law.

Irene Annunziata is a Florida Family Law Attorney for 23 years who specializes in the area of Family Law and LBGT family law issues. You may contact her for further information at: 954-467-2535 or www.FamilyLegalMatters.com


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