Same Sex Marriage and Divorce

The legal and social history of same-sex marriages has been tumultuous and debated. However, in 2015, same-sex marriage became legal in the State of Florida and across the United States. In January 2015, U.S. District Judge for the Northern District of Florida, Robert L. Hinkle, ruled that clerks in all Florida counties are bound by the U.S. Constitution to issue same-sex marriage licenses.

In June 2015, the U.S. Supreme Court in Obergefell v. Hodges, 576 U.S. 644 (2015), ruled that same sex couples had the right to marry pursuant to the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, and required all states to issue marriage licenses to same sex-couples and recognize same-sex marriages of other jurisdictions. This ruling legalized same-sex marriage in Florida. The requirements for homosexual couples to marry in Florida are identical to that of heterosexual couples and are treated identically under the eyes of the law.

Same-Sex Divorces Legal in Florida?

In being granted the right to marry, same-sex couples are also granted the right to enter into a prenuptial and postnuptial agreements and to divorce. Florida’s dissolution of marriage laws are applicable to all divorces regardless of the gender of the spouses. As the U.S. Supreme Court ruled on same-sex marriage in 2015, there is little case law pertaining to same -sex divorces in Florida. There are, however, two notable Florida cases which discuss same-sex divorce prior to the Supreme Court’s decision. In the first case, Judge Dale Cohen of Broward County granted the state’s first same-sex divorce in December 2014. The petitioner in the matter entered into a civil union in Vermont and was granted a divorce in Florida.

Also, in April 2015, the Second District Court of Appeal overturned a Lee County judge’s dismissal, and the Attorney General’s argument to uphold such dismissal of a petition for dissolution of marriage filed by a partner of a same-sex couple married in Massachusetts. Florida Statute §741.212, or the Florida Defense of Marriage Act, previously prevented recognition of out-of-state same-sex marriages and thereby served as a ban on same-sex divorces in Florida. The Second District Court of Appeal did not strike down this statute expressly, but rather precluded its application to out of state legal same-sex marriages. The Second District Court of Appeal found that Florida Statute §741.212, in refusing the divorce proceedings, would not further any legitimate public policy presented so as to preclude divorce proceeding in Florida.

Given the lack of precedent post-Obergefell, Florida courts will undoubtedly deal with decisions affecting same-sex couples in divorce proceedings and we eagerly await such decisions for guidance. The laws of Chapter 61 (Dissolution of Marriage) and others related thereto, apply to same-sex marriages as well. The issues in family cases, whether same-sex or heterosexual, are the same.

We have experience representing spouses in same-sex divorces and can guide you through the process. If you are seeking a same-sex divorce, we can certainly assist. Please contact us to guide you through the divorce process with ease.