Same-Sex Marriage

My partner and I are a same-sex couple and have been together for several years. We have recently been talking about getting married and have started wedding planning. We are aware that same-sex marriages are now legal and recognized in Florida. Is there any other information we need to consider before we legally marry? Our Orlando same-sex marriage attorneys can help your bind a lasting relationship with your partner.

Same-sex couples have been able to marry in Florida as of January 5, 2015, following the case of Brenner v. Scott, which held that the right to marry is a fundamental right and Florida’s ban on same-sex marriage was a violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution. The U.S. Supreme Court held shortly after in the case of Obergefell v. Hodges that same-sex couples can exercise the fundamental right to marriage in all states. Following these landmark cases, same-sex couples were granted all the rights and responsibilities of marriage previously afforded to only heterosexual couples. Some examples of the changes these court rulings brought about include:

• gaining the ability to receive certain tax benefits by filing jointly as a married couple
• receiving health insurance and employment benefits through a spouse
• the ability to inherit from one another as a surviving spouse
• the ability to make medical proxy decisions if one spouse becomes incapacitated
• adopting children together
• and the many other privileges and obligations that accompany a legal marriage.

Prior to Obergefell, some states allowed same-sex marriage while others did not. Most states that banned same-sex marriage would also refuse to recognize same-sex couples who married in another state as a legally married couple. States that still had bans on same-sex marriage would also not allow same-sex couples to obtain divorces in their state, as there was no legal marriage to dissolve under that state’s laws. After Obergefell, same-sex couples married in one state will have their marriage legally recognized by every other state in the U.S.

With these recent changes in the law, same-sex couples now have many new things to take into consideration when deciding whether to marry. One such decision is whether to enter into a prenuptial agreement. Prenuptial agreements are beneficial for many several reasons, such as designating the distribution of assets or alimony in the event of a divorce and placing some restrictions on what a surviving spouse may inherit upon the other spouse’s death. Discussing a prenuptial agreement is a beneficial way to encourage open and honest communication about long-term plans together as a couple before the marriage occurs. If a couple is already married, postnuptial agreements would still be an option to explore for many of the same purposes.

Marriage can also have various financial implications that should be considered beforehand. Conversations about managing money, incurring debt, making major purchases, taking time off from work to pursue higher education or vocational training, and saving for retirement should be part of preparing for marriage. Florida’s laws on distributing property following the end of a relationship only apply to divorce proceedings and do not apply to unmarried couples ending their relationship. During a marriage, most property, money, and other assets obtained by either spouse during the marriage is considered marital property and will be distributed between the spouses during a divorce. Most debts incurred during the marriage are also considered to be the debts of the marriage, and both spouses may have to pay back a share of the debt upon divorce. These laws do not apply to unmarried couples. For example, if one person has a credit card in their name and agrees to use that credit card for the benefit of their partner, but the relationship later ends before that credit card debt is paid, the credit card debt remains the responsibility of the credit card holder. Other laws, like real property law or contract law, may determine ownership of property or responsibility for debt between unmarried couples upon separating, but not traditional family laws. Another thing to consider is if one spouse is receiving spousal support or alimony from a prior marriage, those payments may end upon marriage.

A conversation that most couples consider before marriage includes having children in the future and custody arrangements for any children already born. Same-sex couples can now adopt children as a married couple in Florida, throughout the United States, and internationally. If one spouse has children from a prior relationship, their spouse may now be able to complete a stepparent adoption of those children in some situations.

Many couples wish to share a last name when they get married. In Florida and most other states, the process to change your name is much more complex if you are not changing your name following a marriage, divorce, or adoption. In Florida, one spouse wishing to take the other’s last name can do so on their marriage certificate and then use their marriage certificate to have their name changed on their social security card without any other legal documentation from the Florida courts. Once a new social security card is obtained, a newlywed can change their name on their driver’s license or state-issued identification card, and then change their name for all other purposes. Changing your name legally without a marriage, divorce, or adoption requires submitting to a criminal background screening, petitioning the court for a name change, and attending a hearing to have a judge grant the petition. This process is much more complicated, takes longer to complete, and is costlier. Now that same-sex couples can legally marry and obtain divorces, they are able to enjoy the more convenient, less-costly process for name changes.

The process to obtain a marriage license in the state of Florida is the same for all couples. In Florida, marriage licenses are issued by county court judges or clerks of the circuit courts. A marriage application must be completed, each spouse will need to provide government-issued photo identification, and the required license fee must be paid. The license fee may be reduced upon completing a Florida licensed premarital course. Completing a Florida licensed premarital course will also result in a waiver of the three-day waiting period before the marriage ceremony can be performed. If either spouse was previously married, some counties in Florida require proof of the termination of the prior marriage, usually either a final judgment of dissolution of marriage or a death certificate. Once the marriage license is issued, couples must complete the marriage ceremony within sixty (60) days with either an ordained minister or clergy member, a judicial officer, a clerk of the court, or a notary public.

While same-sex couples may now finally enjoy all of the legal benefits, rights, and responsibilities of being married as heterosexual couples, there will always be unique situations to consider. Every couple will have individual needs, questions, and concerns. Here at My Florida Family Law Firm, our family law attorneys have experience working with same-sex couples and members of the LGBTQ+ community on all family law matters. Our attorneys take the rights of LGBTQ+ families very seriously and will work hard to ensure all of your needs are addressed to obtain you the best results possible. Call us today for a free consultation 24/7 at 407-872-0303 or 352-357-4084.