Last week, Federal Judge Robert L. Hinkle clarified his ruling in Brenner v. Scott to state, definitively, that the U.S. Constitution requires Florida clerks of court to issue marriage licenses to same-sex couples. This has brought great jubilation that marriage equality is finally recognized in Florida. Clerks throughout the state (including in my own Hillsborough County) have begun issuing marriage licenses, and some even have officiated over marriages.
However, is same-sex marriage yet completely equal in Florida? Is it recognized for all purposes in Florida, including for purposes of dissolving that marriage?
The answer, as of right now, is not clear.
I am the attorney in a high profile case, Shaw v. Shaw, in which two women married in Massachusetts, moved to Tampa, and determined that their marriage was irretrievably broken. They privately and respectfully settled all issues via the interdisciplinary collaborative divorce process and petitioned the court to dissolve their marriage. This became the first divorce case in Florida to challenge the constitutionality of Florida’s gay marriage ban (both the statute and the constitutional amendment).
Their petition was ultimately dismissed, with the trial court stating it did not have jurisdiction to dissolve a marriage that the state does not recognize. We appealed. The case is currently pending before the Second District Court of Appeals. It is possible that the Second District Court of Appeals might send the case immediately back down to the trial court with instructions to dissolve the marriage, but that has not yet happened.
At this point, all briefs have been filed (including briefs from the ACLU, Florida Bar Family Law Section, and various local governments around the state such as Tampa, St. Petersburg, Orlando, and Miami Beach), and we are still waiting for oral arguments to be set.
One might think it obvious that, if clerks of the court are now issuing marriage licenses, then Florida courts have the authority to dissolve same-sex marriages. But a case out of the Third District Court of Appeals decided on December 24 added a wrinkle to this story.
Similar to Shaw, Oliver v. Stufflebeam involves two women who were married outside of the state. A petition for divorce was filed in Miami-Dade, and the trial court dismissed the petition for the same reason as in Shaw. The dismissal was appealed, but ultimately the Appellate Court agreed with the trial court and said that it did not have jurisdiction to dissolve a marriage that the state did not recognize.
However, unlike in Shaw, the parties in Oliver did not challenge whether Florida’s gay marriage ban violated the U.S. Constitution. Accordingly, the Third District Court of Appeals made its decision based on the assumption that the same-sex marriage ban was valid.
But, still, the Oliver decision was made only two weeks prior to the first same-sex marriage licenses being issued in Florida, and after the federal court in Brenner declared the same-sex marriage ban unconstitutional.
So, where does that leave those same-sex spouses looking to dissolve their marriage in Florida? I spoke to the Tampa Tribune last week about some of these issues. Again, as I mentioned from the outset, it is still unclear.
If your marriage is truly irretrievably broken, I would encourage you to speak with an attorney and stand up for true marriage equality. Marriage should be equal for all purposes, including for purposes of dissolving that marriage. I expect that more and more judges will now be granting divorces, but we are still at a wait and see.