Same-Sex Couples Entitled To Divorce in Florida

 In Law Planet

ringsYou would think in today’s age that such a headline would not be news, but it is. Incredulous as it may sound, this is an issue of first impression in Florida. The recent Florida 2nd District Court of Appeal opinion involved two women who were legally married in Massachusetts in October 2012. They had a child together. Upon moving to Florida, divorce proceedings were started approximately a year after the marriage.

In a great example of being two-faced about your sexuality, the respondent spouse challenged the authority of the court to address a same-sex divorce. This is the same person who willingly participated in a Massachusetts wedding ceremony and received the full benefits of marriage one would expect would occur for any couple! The Florida Atty. Gen. even jumped into the fray and  argued that Florida’s courts could not accept jurisdiction in a same-sex divorce, because doing so ran afoul of the archaic Florida’s Defense of Marriage Act (FS 741.2120). Believe it or not, the argument worked and Lee County Circuit Court Judge Duryea dismissed the divorce. Even with a child involved, this Judge supported dismissal, leaving the child at the mercy of one of the parents.

As would be expected in today’s world, the Florida 2nd District Court of Appeal panel had no trouble reversing the Trial Judge’s ruling. The United States Constitution doesn’t take a backseat to narrow-minded discriminatory statutes. The Full Faith and Credit Clause mandates that a state accept valid marriages from a different state. Although Florida does not recognize common-law marriages created within the state, it does recognize common-law marriages validly created elsewhere. In fact, Florida courts routinely grant divorces to parties who have common-law marriages. The argument that same-sex marriages violated the public policy of the state of Florida was also rejected, as Florida recognizes marriages from other jurisdictions and allows divorce to occur in those circumstances. In other words, recognizing the right to a divorce has nothing to do with recognizing the rights of same-sex parties to get married.

In an interesting addition to the opinion, the Appellate Court also mentions that public policy in protecting children of marriages, regardless of the type of marriage, also plays an important role in accepting jurisdiction to decide a divorce case. By rejecting the ability of same-sex parties to seek a divorce in Florida, the rights of children living in Florida are also affected. Never mind the other issues associated with divorce proceedings, such as property rights and the like. The bottom line is that there is no reason for a Florida court not to accept jurisdiction over an otherwise valid divorce request.

This opinion has great language explaining the interaction of various constitutional issues. Compelling reading for those interested in these issues. Kudos to the Florida 2nd District Court of Appeal for getting this one right. Given a federal judge has already prohibited the enforcement of Florida’s Defense of Marriage Act, this opinion was not unexpected. In fact, it really has nothing to do with same-sex marriage at all, it has to do with a person’s constitutional right to access to the courts.

Images courtesy of freedigitalphotos.net by boykung.

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