Florida Same Sex Couple Laws - GLBT Rights
Gay or lesbian couples encounter a unique set of legal issues surrounding family law matters that arise frequently. Legal issues that impact Florida same sex couples include the drafting of cohabitation agreements, the legal dissolution of same-sex relationships including partition of jointly held real estate or other assets, and same sex partner adoptions. Other legal issues that may arise for gay, lesbian, bi-sexual and transgendered couples (GLBT) couples involve issues concerning federal and state taxes, health insurance, power of attorney documents, advanced medical directives for health care and estate planning issues. Our Florida family law firm believes that all families, including LGBT families, deserve legal representation by attorneys who are versed and experienced in handling the complex legal issues that may arise for same-sex couples.
What is a Domestic Partnership Agreement?
A Domestic Partnership Agreement, sometimes known as a Cohabitation Agreement is a legally binding contract that defines the rights and obligations of two individuals who intend to reside together but either do not wish to or are legally prevented from marrying each other. They are most commonly used for gay, lesbian, bi-sexual and transgendered couples (GLBT), but are also used for heterosexual couples who intend to reside together but not to marry.
There are many domestic partner benefits that can be outlined in a formal contractual agreement. Domestic Partnership Agreements can be entered into as a precaution to protect each party from the cost and stress associated with litigation in the event the partners' relationship dissolves by agreement or death. Florida Domestic Partnership Agreements generally include provisions relating to the joint ownership of real estate or other assets, how debts acquired during and prior to the relationship will be paid, how gifts between the partners will be divided in the event of a split, whether any monthly payments will be made to either partner after the partnership ends, and issues involving life insurance.
Perhaps most importantly, Domestic Partnership Agreements also allow the partners to set forth their agreement regarding child related and parenting issues. While these agreements are legally binding on both parties regarding financial issues, custody of children and their welfare is always subject to review by the Florida Family Court system.
In Florida, Domestic Partnership Agreements are enforceable through the Civil Courts under breach of contract theories except issues involving child custody or child support which are enforceable through Family Court. In Miami-Dade and Broward counties, domestic partners may register their partnership with the clerk of court for official recognition.
Legal Dissolution of Domestic Partnerships in Florida Same-Sex Relationships
In order to protect their rights, many Florida GLBT couples decide to jointly title their real estate and financial accounts. However, these gay and lesbian couples often cannot find adequate support in current Florida law when they are faced with the dissolution of their relationship and the need to divide this property as a result of the termination of the relationship. Our Miami law firm is experienced in assisting same-sex couples with this difficult task.
The first option is to look to the terms of an executed Domestic Partnership Agreement. If the LGBT partners have executed an Agreement, the terms regarding division of assets can be enforced through a breach of contract action. If the LGBT partners did not enter into an Agreement, another legal option involves the use of partition actions.
Partition is the process of dividing jointly owned property, either by permitting one party to purchase the other party's share from the other party or by ordering the sale of the property and dividing the proceeds in proportion to each party's ownership. Under Florida law, a partition action for jointly held real estate or other assets proceeds on a contract or quasi-contract grounds.
Mediation and the collaborative family law processes are other legal options for resolution of Florida same-sex couples' property, debt and child custody issues. While the traditional court system forces GLBT couples to proceed in civil courts for financial issues and family courts for child-related issues, mediation and the collaborative law process can address all issues arising from the termination of a GLBT relationship.
Florida LGBT Adoption Laws
Section 63.04(2) of the Florida Statutes indicated that homosexuals are prohibited from adoption minor children. In 2010, the Third Circuit District Court of Appeals (which includes Miami-Dade County) in the case of Fla. Dept. of Children & Families v. X.X.G. strunk down the statute banning adoption by gay and lesbian individuals as unconstitutional. A homosexual man from Miami who had been a foster parent and wished to adopt his foster child brought the appeal. Since the Third Circuit's decision, many single gay and lesbian individuals have successfully completed adoption actions.
Same sex couples can become parents in a variety of ways. For example, they can adopt a child from a third party or one of the partners in the same sex couple can give birth through the use of assisted reproduction including utilizing a third party sperm or egg donor.
Even if one partner is the biological parent or egg or sperm donor of the child, the other parent may not have any legal rights regarding that child in the event of the relationship ending either by choice or due to the death of a biological parent. This is true even if both parents have been actively involved in raising the child from its birth, living with the child, or financially supporting the child and the other parent.
Same sex couples with children must take additional precautions, such as same sex partner adoptions, to ensure that both parent's rights are legally protected. Under Florida law, gay and lesbian couples may participate in a second parent adoption. This allows the non-biological parent of the child to become a legal parent and establish rights which will be protected by law. In addition to protecting the non-biological parent's rights, adoption also protects the child because it awards the child the opportunity to have health insurance through the non-biological parent and grants the child inheritance rights in the event that the non-biological parent dies without a valid last will and testament.
GLBT Child Custody Actions
The Florida statutues set forth that the judge in a Family Court action must apply a "best interest of the minor child" standard when deciding child custody actions (known as time-sharing actions in Florida). The Florida statutes go further to define the items that a family court judge must consider when making a best interest analysis. Those factors include, amongst others, the "moral fitness of the parent ". Fortunately for LGBT parents, Florida appellate court decisions have determined that sexual orientation, standing alone, shall not be weighed negatively as part of the "moral fitness" consideration.
There may be circumstances where the same-sex non-biological parent has not adopted the partner's minor children and the relationship comes to an end. In this circumstance, Florida law recognizes the rights of the same sex partner who is not the biological parent of minor children when the non-biological partner resided in the same household with the children and played a significant role in their upbringing. When a biological parent separates from their same sex partner and the biological parent refuses meaningful contact with the former partner, the former partner has the right to file a Petition for Paternity and seek the legal recognition of the relationship with the minor children.
However, the former partner who seeks to establish their rights regarding the minor children of the biological parent must be aware that with the establishment of custody rights may come the obligation of financial support via a child support order.
Domestic Partnership Benefits & Other Legal Issues involving Same Sex Couples
In addition to the family law issues listed above regarding same-sex couples, lesbian, gay, bi-sexual and transgendered (LGBT) couples have other unique legal needs. These legal issues include:
- Living Wills & Health Care Surrogates - A living will sets forth the individual's decisions regarding health care issues. A health care surrogate sets forth the individual permitted to make medical decisions if the individual is unable to do so.
- Designation of Agent - This document sets forth the individuals authorized to visit a patient/resident in a healthcare facility (including nursing home, hospice, etc.).
- HIPPA Authorization - Authorizes release of medical records and information to a particular individual.
- Durable Power of Attorney - A Durable Power of Attorney authorizes another individual to complete financial transactions for the benefit of an incapacitated person.
- Last Will & Testament - An option for passing assets at death. Avoids probate which does not recognize the inheritance rights of same-sex partners. May also be utilized to dictate a person's wishes regarding funeral arrangements and selection of an executor of the estate. A Pour Over Will can transfer undesignated assets to a Revocable Living Trust.
- Revocable Living Trusts - An option utilized to pass assets upon death. The trust is a private document and not filed with the court thus providing more privacy in the transfer of assets.
- Beneficiary Designations - Beneficiary designations on life insurance policies, IRAs and retirement plans will avoid those assets being considered as part of the probate estate.
- Payable on Death Accounts - POD accounts for bank accounts, stock accounts and the like allow the depositer to maintain control over the assets while alive and transferring rights only upon death.
- Social Security Administration - Disability or death benefits are not payable to same-sex partners. Alternative arrangements for retirement planning upon death of the primary wage earning partner must be considered due to this denial of benefits.
- Income Tax Issues - Under the federal Defense of Marriage Act, same-sex couples may be prohibited from filing their federal tax returns under the "married" filing status. If the couple is parents of minor children, at least one partner can file under the "head of household" designation or both partners can do so if there are two or more children.
- Medical Insurance Benefits - If medical insurance is provided to the non-employee partner, the payments made by the employer may be considered additional income for federal tax purposes.
- Gift tax planning issues. - A federal gift tax return may be required when property or other assets in excess of $12,000 per year are jointly titled or gifted to a partner.
Our Miami lawyers are experienced in assisting Florida's modern families with these unique legal issues.
Contact Our Dade County Domestic Partnership Attorneys
Contact our Miami domestic partnership attorneys at 305-329-2560, toll-fee at 855-WWW-VARI (855-999-8274), or e-mail us to schedule an appointment to discuss your Dade County, Broward County, or Monroe County domestic partnership issue. Click here to learn about your consultation options.
Our Miami domestic partnership lawyers accept family law cases in Miami-Dade County, Broward County and Monroe County. Our Miami family law office is open Monday through Friday from 8:00 am until 5:00 pm and weekends and evenings by appointment.
Consultations are available in person at our downtown Miami law office and at several meeting locations throughout Dade and Broward Counties including Lincoln Road in Miami Beach, West Country Club Drive in Aventura, Hollywood Boulevard in Hollywood and in the Homestead area. Appointments are also available by telephone and via Skype internet video chat.
