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.