LGBTQ+ Divorce in Florida: Understanding Your Legal Rights

Since the Supreme Court's landmark decision in Obergefell v. Hodges (2015), same-sex couples have had the constitutional right to marry and divorce throughout the United States — including Florida. While Florida courts now treat same-sex divorces under the same laws as any other divorce, unique legal challenges remain, particularly for couples who married before 2015, have complex domestic partnership histories, or face custody disputes involving children born before legal same-sex marriage existed.

Florida Divorce Basics for LGBTQ+ Couples

Florida is a no-fault divorce state. Either spouse can file for divorce by claiming the marriage is "irretrievably broken" — no grounds such as infidelity or abuse are required. To file in Florida, at least one spouse must have been a Florida resident for six months prior to filing.

LGBTQ+ divorces involve the same core legal issues as any Florida divorce:

• Equitable distribution of marital assets and debts
• Alimony and spousal support
• Child custody and time-sharing
• Child support
• Division of retirement accounts and pensions

Pre-Obergefell Property: A Unique LGBTQ+ Challenge

Many same-sex couples were together for years or decades before they could legally marry. During that time, they may have jointly acquired property — a home, a business, retirement accounts, investments. When they later married and then divorce, a significant legal question arises: How should property acquired before legal marriage be treated?

In Florida, only assets acquired during the marriage are "marital property" subject to equitable distribution. Property owned before marriage is generally non-marital. But for LGBTQ+ couples who lived together for many years, contributed to property jointly, and could not legally marry at the time, this rule may produce deeply unfair outcomes.

Some courts have recognized equitable remedies — such as resulting trusts, constructive trusts, or unjust enrichment claims — that allow a partner to claim a share of property acquired during the non-married period based on their actual contributions. These arguments require an experienced attorney to make effectively.

Child Custody in LGBTQ+ Divorces

Florida law determines custody (called "parental responsibility" and "time-sharing") based on the best interests of the child. The law does not discriminate based on the sexual orientation or gender identity of either parent. However, practical challenges arise when:

• Only one parent is the biological parent
• Only one parent legally adopted the child
• A child was conceived through a sperm donor or surrogate before the couple legally married
• The non-biological parent did not complete a legal adoption

A non-biological, non-adoptive parent may have limited or no legal rights to the child absent a legal adoption or other formal recognition. This is a particularly important issue to resolve before a divorce becomes contentious.

Domestic Partnerships and Civil Unions

Some LGBTQ+ couples entered domestic partnerships or civil unions in other states before same-sex marriage was legal in Florida. Florida courts may or may not recognize these prior relationships for asset-division purposes. An attorney can advise on whether a domestic partnership creates any legal rights in the Florida divorce context.

Alimony and LGBTQ+ Divorces

Florida's 2023 alimony reform eliminated permanent alimony and capped the duration of other forms. For LGBTQ+ couples with a lengthy pre-marriage cohabitation period, the "length of the marriage" for alimony purposes may significantly understate the actual time the couple was together — potentially shortchanging the lower-earning spouse. This is another area where legal advocacy and creative arguments matter.

RNC Legal is an LGBTQ+-affirming law firm with deep roots in Fort Lauderdale's LGBTQ+ community. We provide compassionate, non-judgmental representation for every family. Contact our family law team for a confidential consultation.