McGuire Megna Attorneys, An Association of Professionals

Same Sex Divorce and Marriage Equality

Same Sex Divorce and Marriage Equality

Same-sex marriages in Florida have been legal since January 6, 2015, as a result of Brenner v. Scott, the federal lawsuit that eventually overturned the Sunshine State’s ban on same-sex marriages.  Ever since, same-sex couples have been applying for and receiving marriage licenses across the state.  Later that same year, the US Supreme Court ruled that bans on same-sex marriages by states was unconstitutional.  The Obergefell decision was a landmark for the nation’s highest court and represented a watershed moment for those seeking marriage equality.

Writing for the majority, Supreme Court Justice Anthony Kennedy wrote, “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. ”

Now that we have more than two years of marriage equality as the law of the land, it’s a good time to review some of the unforeseen consequences of the Court’s landmark decision.  As we’ve witnessed how other groundbreaking court decisions have impacted the practical aspects of how we live our lives, it’s important to step back and survey the landscape.  This happens every time such a momentous decision occurs.  We witnessed it in Brown v. Board of Education in 1954.  There are practical aspects of these decisions to be considered.  In the Brown decision, it became necessary for local communities to consider how to integrate all students into public school systems.  Initially, there were fits and starts, even some problems that the Supreme Court justices at the time may or may not have foreseen.  The same is true with Obrgefell and same-sex marriage.

One of these consequences concerns divorce, especially in Florida where a statute remains on the books that prohibits the recognition of same-sex marriages.  The statute reads “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.”  At least one Florida judge has used this statute to deny a same-sex divorce in Florida!

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 main roadblock for the dissolution of gay marriages is found within section 741.212(1) of the Florida Statutes.  The Third District Court of Appeal 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 couple. In the words of the Court, “[O]ne cannot dissolve a marriage where there is not a marriage to dissolve.”

Now, does this mean that a same-sex married couple can’t get a divorce in Florida?  No, not necessarily.  However, what I am saying it that state law hasn’t quite caught up with more recent federal rulings.  Same-sex marriage and divorce particularly are complex and require a same-sex divorce lawyer to handle it.  Same-sex divorce is possible but it’s complicated by the fact that Florida statutes don’t necessarily reflect the latest federal jurisprudence. 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.

This is meant as a cautionary tale. If you’re a same-sex married couple contemplating a divorce in Florida, you need to know the legal landscape.  Presently, Florida upholds marriage equality.  The same is not necessarily true for same-sex divorce.  Give us a call for a free initial consultation.


Scroll to Top