When most of us think about the term, “traditional divorce,” we think about opposite-sex divorce. However, when marriage equality was enacted, Delray Beach, Florida, divorce equality was also made the law of the land. Unfortunately, though, in practice, that equality does not always play out in practice.
The laws on child support and custody in the United States, including Florida, were based on biological or adoptive parentage. And, the default preference under the law has always been with the biological parent. For opposite-sex divorce, in the past, this has meant that fathers were often treated less favorably than mothers. Though, this has some unique issues when it comes to same-sex or gay divorce.
For a lesbian or a trans couple divorce, the person who carried the child may get preferential treatment, even if the baby does not have the biological DNA of either parent. Conversely, the biological parent of the baby may receive preferential treatment, even if the other parent actually carried the baby.
For adopted parents where one parent transitioned to a male, they may experience some of the same disparity that fathers complain of, depending on the Delray Beach, Florida, judge.
Similarly, child support can become just as complicated. If one parent has no biological connection to the child and did not legally adopt the child, they may find that they lose their parental rights. On the other hand, the parent granted custody may find their child support options similarly eliminated. In a word, it can become complicated fast.
Cohabitation prior to marriage
Another wrinkle for gay divorcees is the divorce property division process. Technically, there is no legal difference between same-sex and opposite-sex property division, but, again, in practice, they can look very different. This is because divorce equality is a much more recent legal allowance for same-sex couples.
This means they likely cohabitated for years, if not decades, prior to the marriage. Some may have actually spent more time together pre-marriage than post-marriage. This can cause havoc when the court determines what is classified as marital property, which is separated between the divorcing spouses, and nonmarital property, which is not split.
For our Palm Beach County same-sex couples thinking about divorce, or for those individually thinking about divorce, this post likely scared them. The uncertainty of divorce is scary, and knowing that gay divorce has its own wrinkles can make those unknowns even scarier. This is why the couple should make postnuptial agreements immediately to ensure that both spouses are treated fairly, should a divorce occur.