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Broward Judge Grants Florida’s First Ever Same-Sex Divorce

800px-Lesbian_Wedding_3.jpgA Broward Circuit Judge’s order on December 17 granted to a South Florida art dealer something she sought for more than a year: a divorce. What made the judge’s in-court ruling groundbreaking was that the woman sought a divorce from her lesbian partner, with whom she had entered into a civil union in 2002. The ruling represents the first time a Florida court has issued a divorce to a same-sex couple and comes on the heels of a December 8 ruling, issued in the same case, declaring Florida’s ban on same-sex marriages unconstitutional and unenforceable, the Miami Herald reported.

The former couple entered into a civil union in Vermont 12 years ago. In 2010, one partner allegedly became unfaithful and, shortly thereafter, disappeared. In order for the other partner to marry her new partner, she needed to obtain a divorce. In a similar case involving a Tampa couple, the lesbian couple married in Massachusetts but could not get a Massachusetts divorce because neither was a resident there by the time they decided to part ways. In the present case, she could not obtain a Vermont dissolution because Vermont law requires a signed affidavit from her partner, and she no longer knew the partner’s whereabouts.

The case went before Broward Circuit Judge Dale Cohen. Back in August, the judge declared the state’s same-sex marriage ban unconstitutional but later vacated that ruling after determining that attorneys for the partner seeking the divorce had not adequately given the state notice of their intent to mount a challenge to the constitutionality of the marriage law.

The woman’s attorneys re-filed their motion and this time included the necessary notices to the Attorney General. Judge Cohen’s December 8 ruling compared same-sex marriage to common law marriage. The opinion pointed out that, although Florida has not allowed common law marriages since 1968, state law makes clear that Florida recognizes common law marriages that occur in states that permit such marriages. Just as Florida recognizes out-of-state common law marriages in accordance with the Full Faith and Credit Clause of the Constitution, so too should it recognize out-of-state same-sex marriages or civil unions occurring in states that recognize the practice.

The court did not stop there, however. It also declared that the state’s statute prohibiting same-sex marriages was unconstitutional. People have a fundamental right to marry, and the statute, Section 741.212, infringed upon homosexuals’ right to marry the persons of their choice. Judge Cohen distilled the state’s arguments in support of the statute to “history and tradition,” “protecting children,” and “furthering procreation.” However, the court discounted these arguments, pointing out that Florida law already permits homosexuals to adopt and raise children, and the state allows seniors and other people who cannot procreate to marry.

Judge Cohen’s December 8 opinion, in support of the decision to invalidate the ban, stated that “[e]very federal court to address this issue since the Supreme Court’s decision in Windsor … has found that denying same-sex couples the fundamental right to marry violates due process.” However, on November 6, the federal Sixth Circuit Court of Appeals upheld the marriage ban statutes in Michigan, Ohio, Kentucky, and Tennessee. Many legal observers believe that this Sixth Circuit ruling, which is starkly opposed by decisions in the Fourth, Seventh, Ninth, and Tenth Circuits that struck down same-sex marriage bans, will lead the US Supreme Court to address the issue of the constitutionality of laws banning same-sex marriage.

The laws regarding marriage rights and same-sex couples are changing quickly, especially here in Florida. If you have question regarding your same-sex marriage or divorce in Florida, it is important to consult skilled Florida family law counsel. The South Florida family law attorneys at Sandy T. Fox, P.A. have the knowledge and the dedication to help families of all types with their family law issues. Contact us online or by calling (800) 596-0579 to schedule your confidential consultation.

More blog posts:

Broward, Palm Beach Courts Join 2 Others in Ruling State’s Same-Sex Marriage Ban Unconstitutional, Fort Lauderdale Divorce Lawyer Blog, Aug. 5,2014
Keys Judge Rules Florida’s Same-Sex Marriage Ban Unconstitutional, Fort Lauderdale Divorce Lawyer Blog, July 21, 2014
Photo credit: Patrick Doheny at Wikimedia Commons.