Since the U.S Supreme Court recently legitimized same sex marriage in every state, courts will now be grappling with related issues that tread new legal turf in family law cases. Premarital agreements, parenting responsibilities, and property rights are three issues that readily come to mind.
Prior to the U.S. Supreme Court’s landmark decision, many same sex couples entered into cohabitation agreements to govern their support and property rights in the event of a break-up, much like opposite sex couples entered into premarital agreements before marrying. Now that same sex couples are free to marry in Florida, will their cohabitation agreement continue to govern property and support rights once the parties have legally married or is a new premarital agreement needed? It’s probably safe to say that the best course in these uncharted legal waters is to enter into a new premarital agreement prior to marriage.
Parenting issues are another thorny area in many divorces and certainly near and dear to the hearts of most parents in a dissolving marital relationship. It has long been settled Florida law that the husband in an opposite sex marriage is presumed to be the legal father of any child born to the wife during the marriage, regardless of whether the husband is, in fact, the biological father of the child. When divorce occurs, the non-biological legal father is entitled to the same parenting rights and support obligations as a biological and legal father.
How will this legal principle play out in a same sex marriage of two women or two men? Assuming that one of the parents is the biological mother or father of the child, will the other parent be accorded the same legal presumption of parenthood as a non-biological legal father? It’s hard to imagine that the law could be applied any differently to a same sex parent, but this is an important legal right and responsibility that could be challenged in future divorce cases. Strategic legal action now by same sex couples with children or those who are planning to have children could avoid this contentious issue from rearing its ugly head in a later divorce
Property rights are another area of potential legal dispute in same sex marriage and divorce. If a same sex couple legally married in another state, but then moved to Florida and purchased real property together before the recent Supreme Court ruling, does the couple’s ownership of the property automatically convert to a joint tenancy of the entireties title to the property or does the property need to be retitled by the parties to reflect Florida’s new recognition of the couple’s married status when the property was purchased? Will Florida courts, in fact, recognize the validity of legal same sex marriages in other states pre-dating the U.S. Supreme Court’s decision when it comes to Florida real property rights?
Both same sex couples who legally wed in another state and have since relocated to Florida as well as same sex couples planning to be married in Florida should be proactive by carefully considering their rights and options and addressing any legally problematic areas immediately. Consult with a highly experienced, knowledgeable family law attorney who has been practicing in this community for over twenty years. Limited free consultations are available; call now for details.
Obergefell v. Hodges, 576 U.S. (2015)
