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Are there differences for gay divorcees?

On Behalf of | Aug 22, 2022 | Divorce |

It may come as a surprise for some, but gay marriage has only been allowed in our state since the beginning of 2015. Indeed, this was as a result of the Florida case of Brenner v. Scott, which eventually lead to the U.S. Supreme Court finding that same-sex marriage bans were unconstitutional.

Until that time, since 1977, the state had a specific statute that both banned same-sex marriage and recognition of such marriages from other states. And, in 2008, Florida even passed a state constitutional amendment that banned both civil unions and same-sex marriage, which imposed criminal penalties on court clerks that defied the new state constitution amendment. But, now that this history is over, does that mean that gay and straight divorce is the same?

In practice, property division can differ

The law is now equal for both gay and straight divorce, but in practice, gay and straight couples may experience a very different process. For property division, it will depend on how long the couple was together prior to marriage. In Florida, it has only been permitted for 7 years. This means that couples who were together prior to that time may have been together for decades before they were able to marry legally.

This matters because the property division process in Florida is based on the marital estate, which is created during the marriage. At most, though, the marriage can only be 7 years old. Unless the couple just met at the time, they were likely together for much longer than 7 years, which means their joint assets are likely much greater than their marital assets. This can guarantee a protracted legal battle that a straight couple could have, potentially, been avoided.


Prior to 2015, gay couples were adopting children, having children through surrogacy and having children in other ways. Though, when doing this, usually, only one spouse was given legal parental rights. Post-marriage, the couple may have not done anything to ensure that both parents were legally recognized. This could cause one parent to lose access to their child, or at least, lose primary or even split co-parenting.

Though, even if there was some legal work done to formalize the relationship, biology is still treated more favorably. This means that one parent may become the primary parent simply because of that biological connection. These are not, generally, issues that straight couples face unless there were issues with fertility.

There is a solution

For our Pensacola, Florida, readers, the easiest solution for these issues is to take the decisions out of the family court judge’s hands. Make sure your parentage is legal now. Make a co-habitation agreement or a postnuptial agreement now to make sure everything is legal and split according to how you both want now, not after a fracture.

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