On Jun. 26, 2015, the U.S. Supreme Court made same-sex marriage legal throughout the country. The case of Obergefell v. Hodges – now considered a landmark case in civil rights – gave same-sex couples the right to marry and to enjoy the state-bestowed benefits of joint tax filing, healthcare decision-making as a spouse, equal parental rights, and so on. And it was a shot across the bow (from a legal perspective) against discrimination.
That was roughly three short years ago.
Since that time, it may have become “easier” for a same-sex couple to get married (and divorced), but the limited concept of marriage as between a man and a woman – until recently, the only widely accepted form of marriage since the nation’s founding – continues to affect the lives of same-sex couples.
Because many couples who weren’t allowed to marry, but who otherwise loved each other, inevitably found themselves in long-term relationships as partners, not spouses. And those who live together unmarried typically do not enjoy the same rights and benefits that marriage has bestowed on opposite-sex couples for centuries.
Cohabitation vs. marriage
There’s another word for this: Cohabitation.
In family law, cohabitation isn’t necessarily a bad word, but it does affect the division of assets and property when a couple decides to split, among a host of other issues. Unlike marriage, there is no “contract” in cohabitation. In general, you do not have the same rights and responsibilities after a break-up (such as the presumption of a 50/50 split of marital property).
On a related note, domestic partnerships are a different story. These do bestow many of the same rights and responsibilities as marriage, but prior to Obergefell (when the primary issue for same-sex couples became moot), dozens of Florida counties refused to recognize it.
Decided in 2015, Obergefell is still very recent. And as a same-sex couple, you may have been in a committed relationship for years – though unmarried. Your subsequent marriage may be relatively short by comparison. If you divorce, you’ll find that the law starts with the years of marriage itself, not the years spanning your long-term relationship prior to marriage.
Dividing assets in a short-term marriage
In Florida, fairness is the name of the game.
Historically, American family law did not consider the years of a relationship prior to marriage, but judges do have broad decision-making powers. Known as “judicial discretion,” judges can decide what’s fair in light of the facts and evidence at hand. Florida is an equitable distribution state, meaning that we start with the presumption of a 50/50 split of “marital property” (all property acquired during the marriage). This applies no matter how long (or short) you’ve been married.
But that’s just the starting point.
Same-sex couples in long-term relationships face the same issues married couples face. One partner provided financial support while his or her partner went to med school. One partner stayed at home with young children, out of the workforce, while the other went to work, was promoted, and developed his or her earning power. And so on.
These things matter.
At the end of the day, fairness often dictates that one spouse receives more of the assets and property than the other, even in a short-term marriage but a long-term relationship.
In other words, it’s up to the judge (and your attorney’s powers of persuasion) to ensure that you’re treated fairly.