Same-sex marriage

On June 26, 2015, the United States Supreme Court ruled that same-sex couples have a fundamental right to marry and divorce in every State, including Florida. Florida’s longstanding public policy has firmly been against same-sex marriage, but with the United States Supreme Court’s recent decision, Florida’s laws now must give way to the rights of same-sex couples under the United States Constitution.

Ideally, the State of Florida will allow same-sex couples to exercise their rights without complication going forward. However, the State of Florida has not historically favored allowing same-sex couples to marry or the recognition of same-sex marriages, same-sex couples. Since 1977, the Florida Statutes have explicitly prohibited gay marriage and, since 1997, have explicitly prohibited the recognition of same-sex marriages for any purpose. Additionally, in 2008, the Florida Constitution was amended to restrict the definition of marriage to include only a marriage between a man and a woman. Consequently, with same-sex marriages only recently established as a right nationwide, gay Floridians have a period of transition ahead of them while the State deals with rapid change. Same-sex couples should thus be prepared for complications when applying for a marriage license, getting married, attempting to reap the legal benefits of marriage, or obtaining a divorce.

With the United States Supreme Court handing down its opinion in Obergefell v. Hodges,1 the citizens of Florida now have a firm answer to the question, “Is gay marriage legal?” The answer is “yes.” Same-sex couples “may exercise the fundamental right to marry in all States.”2 Further, “there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”3 Thus, same-sex couples in Florida are guaranteed the right to marry and divorce by the United States Constitution. The provisions of Florida’s Statutes and Constitution, which have been previously discussed (link to prior entries), can no longer be used to prevent same-sex individuals from exercising this right.4 The United States Supreme Court has firmly established that all gay Floridians are entitled to the same benefits of marriage/divorce as heterosexual Floridians. All of Florida’s county clerks are now required to issue marriage licenses to same-sex couples and no Florida court may refuse to grant same-sex spouses a divorce on the basis that Florida law does not recognize same-sex marriages.

The decision in Obergefell v. Hodges is obviously one of great historical and legal importance. With this decision comes a major nationwide change in the status quo and resistance some to this change. While it is anticipated that gay Floridians will no longer have trouble obtaining a marriage license or dissolving their marriages, it is not far-fetched to expect that some government employees/officials unfamiliar with the new law of the land or otherwise personally opposed to same-sex marriage may still hinder same-sex couples from exercising their newly established rights. Additionally, bureaucratic problems may arise from this change in the law. Consequently, gay Floridians should understand that they may still face some unique “bumps in the road” when dealing with matrimonial issues and should consider contacting an attorney if they encounter resistance to the exercise of their rights.

1. Obergefell v. Hodges, 14-556, 2015 WL 2473451 (U.S. 2015).
2. Id. at *23.
3. Id.
4. The laws which previously prevented same-sex couples from exercising the right to marry and divorce are Art. I, § 27, Fla. Const., § 741.212, Fla. Stat. (2014), and § 741.04(1), Fla. Stat. (2014).

On May 29, 2015, the Second District Court of Appeal issued another opinion on the matter of same-sex divorce. In Shaw v. Shaw, the Court of Appeal again reversed the decision of trial court refusing to allow a same-sex couple to obtain a divorce.1 In doing so, the Court cited back to its previous opinion in Brandon-Thomas v. Brandon-Thomas, the case discussed in the previous entry on the subject of gay divorce.2 The very short opinion simply followed the Brandon-Thomas case as applied to a different same-sex couple. While Shaw v. Shaw does not set any new precedent, it does strengthen the principles set forth by Brandon-Thomas v. Brandon-Thomas and affirms the right of same-sex couples legally married out-of-state to dissolve their marriages in Florida.


See Shaw v. Shaw, 2D14-2384, 2015 WL 3439230 (Fla. 2d DCA 2015)
See Brandon-Thomas v. Brandon-Thomas, 40 Fla. L. Weekly D971 (Fla. 2d DCA Apr. 24, 2015)

New Appellate Opinion Clears the Way for Same-Sex Divorce Across the State of Florida

The state of gay divorce in Florida has recently become significantly clearer. As the general public waits for an opinion to be issued by the United States Supreme Court in Obergefell v. Hodges,1 the case which is expected to definitively resolve same-sex marriage issues nationwide this year, the State of Florida now has ruling of statewide application on the narrower issue of whether same-sex couples married out of state are able to dissolve the marriage in Florida. On April 24, 2015, the Second District Court of Appeal of Florida held, in essence, that Florida courts cannot refuse to dissolve the marriage of a same-sex couple who entered into a marriage valid in another state.2 Consequently, most same-sex spouses seeking a divorce may do so in the State of Florida without necessarily pursuing a constitutional challenge.3

Section 741.212 of the Florida Statutes, as previously noted, prevented recognition of out-of-state same-sex marriages and had previously served as a roadblock to same-sex divorces across the state.4 Now, for those couples married out-of-state, this statute cannot serve to prevent them from dissolving their marriages, as applying it in such a manner runs afoul of the Full Faith and Credit Clause of the United States Constitution.5 That is, Florida is generally required to respect the laws and actions of other states and section 741.212 cannot be used to trump the laws of states where same-sex marriages are legal without a legitimate public policy purpose. The Second District Court of Appeal found no such purpose to exist in preventing same-sex divorce.6

Arguably, however, this case does not guarantee that same-sex couples married in the State of Florida will have their marriages recognized for divorce purposes. The Court of Appeal did not strike down section 741.212 in its opinion, but rather precluded its application to out-of-state legal same-sex marriages.7 Though such is likely not an immediate concern for most, considering that same-sex marriages have not occurred in Florida before this year, it leaves an issue that warrants further discussion at a later time.

With the preceding paragraph in mind, the bottom line is that, for now, most married gay Floridians are clear to pursue a divorce under the law. The impending decision by the United States Supreme Court in Obergefell v. Hodges and any future opinions issued by other Florida Courts of Appeal could change the situation (precisely how is a subject for another post), so those Floridians wishing to dissolve their same-sex marriage would do well to consult an experienced family law attorney sooner rather than later.


1. The United States Supreme Court identifies the consolidated same-sex marriage cases of Obergefell v. Hodges, Tanco v. Haslam, DeBoer v. Snyder, and Bourke v. Beshear as Obergefell v. Hodges.

2. The case is Brandon-Thomas v. Brandon-Thomas, 2D14-761, 2015 WL 1874457 (Fla. 2d DCA 2015).

3. Note that this decision is not yet technically final and is subject to revision or withdrawal at the moment. However, revision or withdrawal is a rare occurrence and it will almost certainly become officially binding law in a matter of weeks.

4. See § 741.212, Fla. Stat. (2014).

5. See Brandon-Thomas v. Brandon-Thomas, 2D14-761, 2015 WL 1874457 (Fla. 2d DCA 2015).

6. See id.

7. Floridians still await word from the United States Supreme Court or another Florida appellate court for a decision which entirely invalidates section 741.212 or affirmatively binds courts to entertain same-sex divorce petitions for in-state marriages.

Considerations for Newlywed Same-Sex Couples in Florida

Same-sex couples across the State of Florida will be able to procure marriage licenses on January 6, 2015.  However, couples should understand that gay marriage in Florida is not yet a settled issue.  While this date will certainly be a milestone as well as a day of great joy and celebration for many Floridians, there are some legal considerations which should be given thought by same-sex couples looking to “tie the knot.”  This post will not go into the legal details surrounding the decision of Florida’s clerks to issue marriage licenses to same-sex couples, but will simply outline a few issues for couples to consider this week.

First, it has been announced that clerks in all of Florida’s counties will be issuing marriage licenses to same-sex couples, but several county courthouses are no longer performing ceremonies to solemnize any marriages. Thus, couples will be able to obtain marriage licenses wherever they wish, but some may need to find their own officiants to finalize their marriage rather than depend on their local courthouse to do so. There is no indication that courthouse wedding ceremonies will cease to be performed in Alachua County, but ceremonies have recently become unavailable in the surrounding counties of Baker, Clay, Marion, and Union. Couples who intend to be married at a courthouse should confirm whether their local courthouse is still conducting ceremonies.

Second, couples should be aware that the potential for Florida’s bans on same-sex marriages to be upheld still exists.  Several suits are working their way through both state and federal court systems.  Though the legal momentum certainly seems to be in favor of gay marriage in Florida, a higher Florida or federal court could still decide to uphold Florida’s prohibitions.  Further, certain groups are currently seeking to halt the issuance of licenses.  Consequently, decisions adverse to gay marriage may still be rendered.  Notwithstanding the merits of any position or the probability of success of any given action, same-sex couples wishing to marry in this state should keep such a possibility in mind and be prepared for it.

Finally, those who have already entered into a same-sex marriage in another state or newly wed couples who wish to obtain benefits granted to married couples should apply as any couple would, but keep in mind that there may be resistance to the granting of spousal benefits until higher court opinions on the validity of Florida’s same-sex marriage bans have been issued.  Competent counsel should be consulted by any couple denied marital benefits on the basis of Florida’s same-sex marriage bans.

The impending issuance of marriage licenses to same-sex couples in Florida doubtlessly puts the state’s prohibition of gay marriage on life support.  Additionally, existing gay marriages may be more difficult for any Florida court to refuse to recognize.  However, until final resolution comes from higher courts, same-sex spouses should be aware that the bans are not quite dead yet and understand that they may still have to wait for these issues to resolve through the courts or the legislature.

While Florida news outlets are mainly reporting on the ability of gay Floridians to enter into a marriage, there is little discussion on the topic of dissolving one. Obviously, this lack of coverage is due to the issue of gay divorce being one that currently affects a relatively small number of people. However, the inability of Floridians who entered into a same-sex marriage in a state which recognizes the marriage to divorce in Florida is an incredibly frustrating problem for those who face it.

On December 17, 2014 in Broward County, the State of Florida saw its first same-sex divorce. Judge Dale Cohen of the Seventeenth Judicial Circuit of Florida ruled Florida’s ban on recognition of same-sex marriages to be unconstitutional and subsequently granted a petition for the dissolution of a gay marriage. The denizens of Gainesville and its surrounding areas may now be asking: Can any same-sex couple get a divorce in Florida? The answer is “possibly.”

The main roadblock for the dissolution of gay marriages is found within section 741.212(1) of the Florida Statutes. This statute flatly states, “Marriages between persons of the same sex entered into in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, or relationships between persons of the same sex which are treated as marriages in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, are not recognized for any purpose in this state.” The Third District Court of Appeal very recently issued an opinion making clear that this statute prevents same-sex couples from engaging in the divorce process when it upheld a lower court’s decision to dismiss the divorce petition of a same-sex couple1. In the words of the Court, “[O]ne cannot dissolve a marriage where there is not a marriage to dissolve.”2

Does this very recent opinion from the Third District settle the issue of whether same-sex couples across Florida can dissolve their marriage? The answer is “certainly not.” The Florida Statutes may presently stand in the way of gay divorce, but the question of whether section 741.212 passes constitutional muster remains unresolved. In this very same opinion, the Third District Court of Appeal notes, “This case is not about the constitutionality or merits of same-sex marriage.”3 Hence, while at the present time it is clear that the Florida Statutes prohibit gay divorce, the statutes doing so have been already been held unconstitutional by two circuit courts, including the aforementioned Broward court, and one federal district court in Florida.

The existing Florida judicial decisions concerning section 741.212 do not clearly allow for the dissolution of gay marriages in Alachua County or its surrounding counties. Until the validity of 741.212 is decided by a Florida Court of Appeal or the United States Supreme Court, such a question is yet to be answered definitively and a local Florida judge may decide to deny a petition for gay divorce based upon this statute. Conversely, a local judge may find the existing decisions on the issue of gay divorce to be very persuasive, follow what appears to be a strong trend towards the recognition of same-sex marriages, find 741.212 to be unconstitutional, and grant a same-sex divorce. Consequently, a married same-sex couple who wishes to divorce will likely need to find a good lawyer to petition the local court and argue the constitutional validity of the Florida Statutes.

The state of gay divorce in Florida may not be crystal clear at present, but gay Floridians should also consider the possibility of annulling the marriage if they want to end it without engaging in a constitutional challenge to Florida law. Those in a same-sex marriage may avoid being trapped in an unhappy marriage while higher courts take their time deliberating over existing cases. While a court will not decide issues of alimony and equitable distribution if a marriage is annulled, it is a possible option for those who simply “want out” of their same-sex marriage.

The bottom line is that while same-sex divorces seem to be a legal inevitability, they are not currently guaranteed to be granted by a local court. However, it appears to be a strong possibility that a court will grant a gay divorce. If you personally wish to dissolve or annul your same-sex marriage in Florida, a competent lawyer should assist you in the process. Considering the unique legal complexities dissolving a gay marriage may present, one would be wise to consult with counsel if he or she wishes to pursue such an undertaking.

1 Oliver v. Stufflebeam, 3D12-2159, 2014 WL 7331241 (Fla. 3d DCA 2014).
2 Id.
3 Id.