As Florida does not currently recognize same-sex marriages, some judges have interpreted the state’s ban as precluding them from granting same-sex divorces. I am involved in a case in which two women married in Massachusetts, moved to Florida, and separated. They utilized the interdisciplinary collaborative process to come to a full settlement agreement and filed a petition for dissolution of marriage in Tampa. The judge ultimately denied their petition, determining that she did not have jurisdiction to dissolve that which the state does not recognize.
And we appealed. This has become the first divorce matter in Florida to challenge Article I, Section 27 of the Florida Constitution banning recognition of same-sex marriage.
In the meantime, the gay marriage ban is still in effect. So is there anything that same-sex spouses can do to legally end their marriage in Florida?
I would submit that the answer is yes. In addition to asking a Florida court to dissolve their marriage, same-sex spouses can request, in the alternative, that the court annul their marriage.
Whereas divorce is the dissolution of a legal marriage, annulment is a public recognition that the marriage was never valid to begin with. Though there is no statute which governs annulment in Florida, the courts have long recognized their power to annul void marriages. See, i.e., Wright v. Wright, 778 So 2d 352 (Fla 2d DCA 2001); Sack v. Sack, 184 So 2d 434, 436 (Fla 3d DCA 1966).
At the end of the day, an annulment will accomplish the same goal as a divorce: the parties will be considered single under both Florida and federal law.
Parties need to be aware that some courts may be more receptive to the annulment option than others; however, it seems to me that if a court says there is no valid marriage, then it has the power to declare both parties legally single via annulment.