Gay Marriage Arrives in Florida with a Flourish

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Woman and Lady enter a valid civil union in Vermont. Along the way, Woman lands in Florida and Lady takes off for unknown parts, never to be heard from again – at least not by Woman.

In time, Woman takes up with someone new and wants to formalize the end of her civil union with Lady. In other words, Woman wants a divorce.

Problem is, you can’t have a divorce without first having a valid marriage. That probably sounds obvious, yet how it plays out may not always be.

Florida law has not allowed for gay marriages to take place in Florida. Nor, similarly, has Florida law recognized as valid same sex marriages that were entered in other US states that do allow them.

(This goes against the grain of a constitutional principle called full faith and credit. That principle generally requires one US state to recognize a court order entered in another US state, so long as it is valid under the law of the state where it was entered. But that’s another post.)

Since Florida law doesn’t recognize Woman’s Vermont gay marriage-equivalent, a Florida divorce court cannot just smooth sail ahead and enter a Florida divorce.

And so it is that many a Florida family court has flatly refused to grant a divorce to end a same sex marriage.

But with more and more (35 prior to this week) US states permitting gay marriages, this scenario has been facing more and more Florida divorce court judges more and more frequently with each passing moment. And putting an ever-growing strain on Florida’s legal stance with respect to gay divorce and gay marriage.

Rulings, appeals and stays have been flying like crazy lately, and they are not over yet. But the chaos is finally leveling off, at least for the moment.

The upshot is that Florida marriage and divorce law has undergone two huge shifts in the last few weeks. And not in the order that you might expect.

First, yet another Florida divorce court trial judge, this one in nearby Fort Lauderdale, struck down Florida’s ban on gay marriage as unconstitutional. Paving the way for that Broward County family court judge to recognize Woman and Lady’s out-of-state same sex marriage-equivalent as valid.

And, therefore, legally capable of being ended by a Florida divorce. And so that judge in fact went ahead and granted Woman and Lady Florida’s very first same sex divorce.

Which in turn raised the specter of a homegrown gay marriage in Florida. And now, as a consequence of the very same unconstitutionality of Florida’s ban on gay marriage, same sex marriage has now come to pass in Florida as of the wee hours of the morning of this past Tuesday.

And lots of same sex couples seized the chance to get hitched in large communal group ceremonies of historic proportions. Still, because the appeals are not yet exhausted, all the fireworks may not be permanently extinguished just yet.

If gay marriage in Florida withstands further legal challenge, the upcoming chapters of this saga will undoubtedly include application of spousal rights to same sex married couples (for example, extension of various employment benefits to gay spouses of employees); evolution of Florida divorce law (including property division and spousal support) as it pertains to same sex couples; and evolution of Florida adoption and Florida child custody law with respect to gay couples. Stay tuned.

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