Same Sex Marriage and Divorce
The legal and social history of same-sex marriages has been tumultuous and hotly 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 ____ (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 requires all states to issue marriage licenses to same sex-couples and recognize same-sex marriages of other jurisdictions.Same-Sex DivorceIs Same-Sex Divorce Legal in Florida?
In being granted the right to marry, same-sex couples are also granted the right to divorce. As the U.S. Supreme Court ruled on same-sex marriage very recently, 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 Statutes § 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 Statutes § 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.
If you are seeking a same-sex divorce, we can certainly assist. Please contact us to guide you through the divorce process with ease.