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New Developments: Understanding Same-Sex Marriage in Florida

Ever since the Supreme Court struck down the Defense of Marriage Act (DOMA) in 2013, states have begun lifting their respective bans on same-sex marriages. Earlier this month, Florida joined 35 other states in the U.S. when its ban on same-sex marriages was officially lifted.  The court ruling which ended the ban on same-sex marriages in Florida was the case of Brenner v. Scott in August 2014. This ruling was issued by U.S. District Judge  Robert Hinkle. While this news is well received by countless same-sex couples in Florida, the right to marry is only the tip of the iceberg when it comes to marital considerations.

Prenuptials

While few people want to think about divorce when entering into a marriage, about half of all marriages end in divorce. Because of this, it would be prudent for couples who plan on marrying to consider establishing a prenuptial agreement. Prenuptial agreements are made before the creation of the marriage, and in anticipation of divorce. These agreements establish clear property and estate rights and allow for the protection of an individual’s assets and finances upon separation or divorce.  Some benefits to prenuptial agreements are that they provide clarity and security to parties, and set clear boundaries on available property.

Division of Property

In a divorce proceeding, one of the primary considerations is the division of property. Absent a settlement agreement, the courts in Florida will attempt to make an equitable distribution of the marital property between both spouses. This means that any assets or liabilities that were incurred during the time of the marriage will be divided between the spouses based on principles of equity. In addition, personal property may be transmuted into marital property if used in furtherance of the marriage, or if commingled with marital property.

Choice of Jurisdiction

Another important consideration same-sex couples might need to make is where to file for divorce, since couples may migrate from one state to another for various reasons. While more states are lifting their ban on same-sex marriage, there are still several states that prohibit same-sex marriages. In such jurisdictions, a same-sex couple that was validly married would be unable to obtain a divorce in the non-marrying state. This can create several problems for the couple seeking divorce, including extending divorce proceedings and increasing costs.

Marriage Considerations

Even absent divorce, marriage carries with it many considerations, some of which are more obvious than others. For example, upon marrying, it is generally known that a couple will be able to file their taxes jointly. This joint income, however, has consequences beyond taxes, and could even prevent a spouse who plans on earning an education from receiving financial aid. Another financial or economic consideration is whether one spouse is eligible for the other’s workplace benefits, such as health insurance or retirement plans.  The ability to marry also carries with it the possibility of stepparent adoption. If either spouse is entering the marriage with children, the non-parent spouse will need to formally adopt these children in order to be considered the legal parent of them.

Regardless of the parties involved, marriage carries many implications that affect people’s lives for years to come. Because of this, it is important to be aware of the many ways marriage can affect your life, as well as how to protect yourself should the marriage end in divorce. If you are thinking about getting married or divorced, or your spouse has filed for divorce, then contact us  to schedule a consultation today.

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