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Same Sex Marriage Legal in Florida and Carries Implications for Divorce Proceedings

The conservative state of Florida has had a long, sordid history regarding the topic of LGBT rights, but this new year marked the end of Florida’s 38-year struggle for same-sex marriage.

Legislation banning same-sex marriage has been in place since 1977, and the passage of Amendment 2 in 2008 codified the ban in Florida’s state constitution. Additionally, in 1997, Florida’s Legislature overwhelmingly adopted its own Defense of Marriage Act, which defined marriage as a “union between one man and one woman,” and barred the state from recognizing same-sex marriages performed in other states.

However, as of January 6, 2015, the state of Florida began to legally recognize same-sex marriage. Federal judge Hinkle denounced the archaic ban as unconstitutional through a preliminary injunction. This landmark ruling was due to the key case of Brenner v. Scott (decided August 21, 2014) and its companion case Grimsley v. Scott (filed March 12, 2014). In the Brenner case, a same-sex couple filed a federal lawsuit seeking to have their Canadian marriage recognized in Florida, complaining that they were unable to designate each other as a spouse in the state retirement benefits program because of Florida’s non-recognition of same-sex marriage. In Grimsley, eight same-sex couples filed a federal lawsuit challenging the state’s refusal to recognize same-sex marriages from other states.

What This Means

In Hinkle’s preliminary injunction, public servants were ordered to cease to enforce the ban on same-sex marriage. As of present, the state defendants have appealed to the 11th Circuit Court of Appeals, where the case has been renamed Brenner v. Armstrong. However, while the multiple cases regarding same-sex marriages make their way through the courts, LGBT couples may commence their ceremonies and be legally recognized as married. Hinkle made it clear that the U.S. Constitution requires all Florida court clerks to issue marriage licenses to same-sex couples.

Unfortunately, this also means that LGBT couples may have to go through the divorce process as well, which means filing, serving their spouses, and dividing their assets. Florida refers to divorce as “dissolution of marriage,” and allows either spouse to file. Although Florida has abolished fault as grounds for divorce, fault can be relevant for the sake of awarding alimony, marital assets, and parental responsibility.

What about Child Adoption for Same-Sex Couples?

Fortunately, a state appeals court upheld the ruling by a lower court that the Florida law banning same-sex couples from adopting children violated the equal protection rights for same-sex couples and for children under the Florida Constitution.

Florida Family Law Attorney

Both marriage and divorce can be very emotional and involved processes. It is imperative that you know your legal rights and obligations. Statutory requirements and rules must be followed very closely or there can be serious repercussions.

Sandra Bonfiglio, P. A. is proud to serve LGBT communities and is available to help you with any aspect of your marriage planning and divorce issues. Her office serves the Broward County, Boca Raton and Fort Lauderdale areas. Reach out online or at 954-828-9933.

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