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).