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May 15, 2015
Second DCA permits same-sex divorce

The Second District Court of Appeal has overturned a 20th Circuit judge’s refusal to grant a divorce to a same-sex couple married in another state.

The April 24 opinion found that denying a divorce under state laws and a state constitutional provision prohibiting same-sex marriages ran afoul of the federal Equal Protection Clause by denying access to the courts. Attorney General Pam Bondi intervened in the case to argue against granting the divorce.

The per curiam opinion noted that 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. It also said that neither the spouse opposing the divorce nor the Attorney General’s Office “specifically address what legitimate purpose might be the basis for precluding a Florida court from exercising jurisdiction to dissolve a same-sex marriage legally entered into outside of Florida.”

The opinion said the attorney general argued refusing to grant the divorce would support the state’s “long-standing history of defining marriage as being between a man and a woman.” But the judges rejected that, saying granting divorces to same-sex couples would, if anything, further that goal.

“The practical impact of the trial court’s order is that a validly married couple, albeit of the same sex, cannot access a Florida court to undo their marriage. The couple’s financial affairs remain intertwined, and their joint assets, if any, are not easily transferred. The trial court’s order impedes the flow of assets and capital. Particularly significant, the welfare and stability of a child parented by this couple remains in limbo. The fact that a child is involved implicates Florida’s strong public policy to protect children by determining custody matters in accordance with the best interests of the child. Our decision today protects the parties’ rights of access to the court for dissolution of their marriage and an opportunity to be heard regarding their claimed rights to their assets and the child,” the judges said.

Chief Judge Craig C. Villanti, and Judges Darryl C. Casaneuva and Edward C. LaRose joined in the per curiam opinion.

Casaneuva wrote a separate concurring opinion arguing that Florida courts would be obliged to handle the divorce under access to courts standards, and because the rights of a minor child were involved and the state policy requires the courts “to consider the best interests of the child.”

LaRose wrote a concurring opinion that Florida’s ban on same-sex marriages does not prevent the courts from handling a same-sex divorce for a marriage performed in another state. Failing to address the divorce, he said, would leave the couple’s jointly owned assets intertwined, impede “the flow and assets and capital,” and leave the “welfare and stability” of the couple’s minor child in doubt.

“These financial and custody issues are markedly different from whether a same-sex couple is entitled to wed in Florida,” LaRose wrote.

The court ruled in Brandon-Thomas v. Brandon-Thomas, case no. 2D14-761.

The case was one of two same-sex divorce cases pending before the Second DCA. The Bar’s Family Law Section had filed an amicus brief in the other case but not this one. However, the two cases were similar in that the judges said state laws and the constitutional amendment approved by voters on marriage left them without the authority to handle a same-sex divorce petition.

The two cases were part of a spate of cases last year either involving a same-sex divorce or directly challenging the state’s ban of same-sex marriages. Those were affected with a federal district court ruling striking the state’s ban, that judge’s lifting a stay on his ruling while it was appealed to the U.S. 11th Circuit Court of Appeals, and the 11th Circuit’s and U.S. Supreme Court’s refusal to re-impose the stay. The U.S. Supreme Court is considering a challenge to same-sex marriage bans in four other states and whether states must recognize same-sex marriages performed in other states. The court heard oral arguments on those questions on April 28.

[Revised: 04-27-2017]