If you or a member of your family identifies as lesbian, gay, bisexual, transgender, queer, or otherwise (LGBTQ+), you are likely feeling under siege from the rhetoric and actions of Florida and national politicians.  You may be wondering what you can do to protect your family’s rights.  This blog discusses steps that you can take to shore up your Florida LGBTQ+ family law rights.

Adopting Your Children

If you are in a same-sex relationship and have children with your partner/spouse, and if you are not a biological parent, you need to adopt your children.  This recommendation surprises a lot of families.  But I have seen heart-breaking situations where a couple splits up, the non-biological parent is denied recognition of their parenthood, and all contact is cut off between that parent and the children until the children are adults.

Even if your children were born during your marriage, if you are a non-biological parent, you should adopt.  Though there is a presumption that a child born during an intact marriage is the legal child of both parents, the likely applicable statute still uses language that only recognizes straight parents.  Section 742.11, Florida Statutes, states the following:

(1) Except in the case of gestational surrogacy, any child born within wedlock who has been conceived by the means of artificial or in vitro insemination is irrebuttably presumed to be the child of the husband and wife, provided that both husband and wife have consented in writing to the artificial or in vitro insemination.
(2) Except in the case of gestational surrogacy, any child born within wedlock who has been conceived by means of donated eggs or preembryos shall be irrebuttably presumed to be the child of the recipient gestating woman and her husband, provided that both parties have consented in writing to the use of donated eggs or preembryos.

When gestational surrogacy is utilized, section 742.13, Florida Statutes, still defines a “commissioning couple” as “the intended mother and father of a child who will be conceived…”

Because case law and legal presumptions can change, and because same-sex parents who utilize artificial insemination, in vitro fertilization, and other methods have not had their rights codified by statute, I urge you to look into adopting your children.

Creating a Domestic Partnership or Postnuptial Agreement

Many families celebrated the 2015 U.S. Supreme Court decision of Obergefell v. Hodges, which recognized the right of same-sex couples to marry in the United States.  After this decision, many couples decided to tie the knot.  Additionally, many couples decided not to marry, even while they celebrated the fact that they could.

In the years since Obergefell, families who ended up divorcing found that their long-term relationship was treated as a short-term marriage.  This meant that their family law rights were severely limited, greatly reducing options for the division of assets and debts and spousal support.

One way to secure recognition of the entire length of the relationship, regardless of when you were married, is to enter into a postnuptial agreement, also known as a postmarital agreement.  A postnuptial agreement is like a prenuptial agreement, except that it is signed while a couple is married rather than before the marriage.  And though prenuptial and postnuptial agreements have a reputation for being used to limit a spouse’s rights, they can also be used to expand your rights beyond default Florida law.  This includes being used to legally recognize relationships that started years or decades prior to a marriage.

And if you and your partner are not married, then under Florida law you likely have no (or very limited) rights.  But you can establish rights between you and your partner by entering into a domestic partnership agreement.  This allows you, by contract, to treat your relationship as a marriage and provide protections for both partners.  In essence, it allows you to create your own law and framework for how you want to treat property, debts, income, and expenses during a relationship and in the event that the relationship did not work out.

Legal Name Change

If you or your child is transgender, and you wish to legally adopt a name that fits, then you may want to consider a legal name change.  In Florida, name changes are a legal process that require a petition to a court and a final judgment signed by a judge.  For an adult name change, so long as you meet certain criteria, a judge does not have discretion to deny your petition.

For a minor child’s name change, a judge could conceivably deny the request if they found that it were not in the child’s best interest.  However, in my experience of over a decade helping families acquire legal name changes for transgender children, I have never experienced a judge denying the request when all criteria are met and both parents are in agreement.

Please note that if one parent objects to the name change of a minor child, then a judge likely will not grant it.  However, if the other parent does not support the name change but also does not proactively file an objection or show up to a final hearing, then the name change will likely be granted.

Collaborative Divorce & Family Law for LGBTQ+ Families

If you are facing divorce or separation, you have options to resolve all issues privately rather than in the public court system.  You and your spouse or partner can make all decisions, rather than leave it to a judge who may have his or her own biases and prejudices.  I highly recommend all families facing separation or divorce, regardless of whether they consider themselves members of the LGBTQ+ community, to consider the Collaborative Family Law process.

In the Collaborative Process, each spouse has their own separate lawyer, and the lawyers are there solely for the purpose of reaching an agreement privately and without fighting in court.  This means that no time, energy, or money is spent preparing for trial or engaging in expensive and damaging adversarial proceedings.  Oftentimes, neutral experts help out to (i) focus communication on the future rather than the fights of the past, (ii) tailor parenting plans, (iii) disclose and lay out the family finances, and (iv) create a holistic and durable resolution of all issues.

The Collaborative Process is non-adversarial, and everyone works with each other rather than against each other.  The spouses’ lawyers see each other as teammates rather than as “opposing counsel” and treat both spouses as people rather than as “opposing parties.”

Conclusion on Florida LGBTQ+ Family Law Protections

These can be scary times.  But you are not helpless to protect your family.  If you wish to learn more about how to protect your LGBTQ+ family law rights in Florida, we invite you to reach out to us.

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Adam B. Cordover is an internationally-recognized thought leader and American Bar Association author on Collaborative Family Law.  Adam was involved in the first same-sex divorce in the State of Florida to challenge both the so-called Defense of Marriage Act and Florida constitutional amendment banning recognition of same-sex relationships.  He has spoken on the history and state of LGBTQ+ family law rights in Florida to international, national, and statewide organizations.