Can I Now Divorce My Same-Sex Spouse in Florida?

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.

Hillsborough County Clerk of the Court Pat Frank Officiates Over a Mass Same-Sex Wedding

Hillsborough County Clerk of the Court Pat Frank Officiates Over a Mass Same-Sex Wedding

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 caseShaw 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 ShawOliver 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.

If you have questions about how recent changes affect your family law rights, schedule a consultation with The Law Firm of Adam B. Cordover, P.A., at (813) 443-0615 or fill out our contact form.


About Adam B. Cordover, Attorney-at-Law

Family Diplomacy is dedicated to helping clients restructure their families privately and respectfully. We practice exclusively in out-of-court dispute resolution, with a focus on collaborative divorce and family law, mediation, direct negotiations, and unbundled legal services. We maintain this out-of-court practice because we strongly believe that family disputes should be resolved in a private conference room, not in a hostile and public courtroom environment. This unique perspective on family law stems back to Adam B. Cordover’s experience studying International Affairs in Washington, D.C., and abroad. Adam had the rare opportunity to work closely with ambassadors and diplomats from war-torn regions around the world. He traveled around the globe, learning from diplomatic leaders as they applied dispute resolution techniques to tackle seemingly impossible conflicts. It dawned on him: If these techniques can work in the complex world of International Relations, why not Domestic Relations and Family Law? This realization lead Adam to create an exclusively out-of-court practice and to bring a more peacemaking approach to family law. In his previous role as a litigation attorney, Adam witnessed parties experience the negative emotional and financial effects that long, drawn out divorce battles can have on families. As a result, Adam has become a strong proponent of the Collaborative Process, where a structure is put in place so that life’s hardest moments do not have to be any more difficult than necessary. A thought leader in the international collaborative law community, Adam successfully spearheaded an effort of the Thirteenth Judicial Circuit to draft an administrative order safeguarding the principles of collaborative family law (just the fourth such administrative order in Florida). Adam has been featured in or interviewed about collaborative practice by the Tampa Bay Times, Tampa Tribune, Orlando Sentinel, Miami Herald, Tampa Bay Business Journal, Florida Bar News, NBC, Fox 13, Bay News 9, ABC Action News, The World of Collaborative Practice Magazine, and Spirit FM 90.5. Adam regularly speaks at professional and civic organizations locally and internationally regarding the collaborative process. Adam B. Cordover is president of Next Generation Divorce, a 501(c)(3) and Florida’s largest interdisciplinary collaborative practice group with member attorneys, mental health professionals, and financial professionals throughout Hillsborough, Pinellas, Pasco, Sarasota, and Manatee Counties. Adam is also on the Executive Board and co-chair of the Research Committee of the Collaborative Family Law Council of Florida. Further, Adam is a graduate of the inaugural class of the Leadership Academy of the International Academy of Collaborative Professionals. You can learn more about us and our services at Attorney Adam B. Cordover is admitted to the Florida Bar and the United States District Court, Middle District of Florida. His office is located at 412 East Madison Street, Suite 824, Tampa, Florida 33602.
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One Response to Can I Now Divorce My Same-Sex Spouse in Florida?

  1. Pingback: Florida Same-Sex Marriage – Will I Be On My Child’s Birth Certificate? | ABC Family Law Blog

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