Same-Sex Divorce in Florida

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Same-Sex Divorce in Florida

There may be same-sex couples living in the State of Florida who are not yet aware that the courts are now recognizing same-sex marriage and same-sex divorce in Florida.   The courts in Florida have ruled in direct conflict with Florida Statutes which have not yet been changed.

same-sex divorce in Florida: recently married couples pose for a camera

What do the Florida Statutes say?

The 2016 Florida Statutes
Title XLIII
DOMESTIC RELATIONS
Chapter 741 
MARRIAGE; DOMESTIC VIOLENCE
View Entire Chapter
741.212 Marriages between persons of the same sex.

(1) 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.

(2) The state, its agencies, and its political subdivisions may not give effect to any public act, record, or judicial proceeding of any state, territory, possession, or tribe of the United States or of any other jurisdiction, either domestic or foreign, or any other place or location respecting either a marriage or relationship not recognized under subsection (1) or a claim arising from such a marriage or relationship.

(3) For purposes of interpreting any state statute or rule, the term “marriage” means only a legal union between one man and one woman as husband and wife, and the term “spouse” applies only to a member of such a union.

 

How the Courts Ruled

Florida, as of the year 2014, did not recognize same-sex marriage or same-sex divorce. Same-sex couples who were legally married in other jurisdictions and later moved to Florida, lost the rights they obtained when legally married elsewhere.

As of Jan 6th 2015, Florida recognizes heterosexual marriages performed in other jurisdictions and also common law marriages from other states, although Florida itself no longer allows common law marriages. This comes as the result of a court case, Brenner v. Scott AND Brandon-Thomas v. Brandon-Thomas, case no. 2D14-761., which challenged the constitutionality of Florida’s ban on same-sex marriage.

Is Same-Sex Divorce in Florida Any Different?

No, the process for same-sex divorce in Florida will be the same as any divorce involving heterosexual couples in Florida.  One party will still need to be a resident of the state of Florida for 6 months and since Florida is a “no fault” state all that will need to be alleged in the petition is that the marriage is “irretrievably broken.”

Same sex couples might, however, experience some unique differences in the actual content of the divorce regarding specific claims for things such as spousal support or child custody rights.  Since Florida Courts have just recently recognized same-sex marriage, many couples might have just recently gotten married even though they have lived as a married couple for many years.

Duration of Marriage and Children

Typically one of the primary considerations for a spousal support award by the courts is the duration of the marriage.  Child custody can also be an issue in a same-sex marriage when one of the parties is actually the biological parent of a child but the other parent is not.  My advice to all couples is to enter into a well thought out prenuptial agreement which determines how couples wish the courts to handle such issues.

This will save a great deal of time, money and heartache, regardless of whether or not it is a same-sex divorce in Florida.