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Gay Divorce and Guardianship Law Issues In Florida

Same sex marriage has been the law of the land in Florida since at least January 6, 2015, when a Florida judge’s ruling against same sex marriage was deemed to be unenforceable. Gay marriage has inevitably created new sub-issues involving gay divorce and guardianship law In Florida that the state’s judges are slowly getting under control. Many of those issues deal with child custody and guardianship proceedings.

Child Custody

The state’s family law courts are charged with protecting the best interests of a child in custody battles. A court will typically deny custody to an individual who is not a legal parent of a child. In a same sex marriage, only one partner is typically the child’s biological parent. If the other parent has not legally adopted the child prior to a custody hearing, the biological parent will get sole custody. The other partner in this situation will have no visitation rights nor any obligations to pay child support or to provide other financial assistance.

This current state of child custody law ignores a situation in which both partners in a same sex marriage spend many years raising a child before a divorce, but where one of those partners never legally adopts the child. As more issues surrounding gay marriage and divorce are brought before Florida’s courts, this situation will likely be tested and challenged.

Same Sex Adoptions

The safest course of action in Florida is for a non-biological parent to obtain a second-parent adoption of a child in a same sex marriage. This may not be possible, however, if the child has two legal parents, for example, where an opposite sex ex-spouse of one partner in a gay marriage retains parental rights. The situation is further complicated where a third-party sperm donor provides the biological material to a lesbian couple but fails to make his intentions clear regarding any parental rights he may have. Florida’s family law courts will likely struggle with these issues for the next several years.


Florida treats long and short marriages differently where alimony is concerned. Permanent alimony is available under Florida only when a marriage has lasted more than seventeen years. This raises the question of whether a Florida divorce court will consider a gay marriage to have originated at any time before gay marriages were recognized under the state’s law and constitution.

Divorce and guardianship issues are complicated and fraught with emotion. The attorneys at Law Offices of Ronald M. Zakarin have represented all types of couples in divorce, custody, and guardianship proceedings and can help you to make the best decisions for yourself and your children in those proceedings. Please contact us to schedule a consultation if you have any questions about your Florida rights in one of those proceedings.