What is the Legal History of Same Sex Couples in Florida Courts?

Lady justice and legal scales

The Obergefell v Hodges (2015) decision was not the first same sex marriage issue to find its way before the court, however it is the first to label marriage as a fundamental right under the due process clause of the 14th amendment. Obergefell v. Hodges, 135 S. Ct. 2584. Reasoning behind this landmark decision included noting the importance of personal choice or individual autonomy; citing Griswold v. Connecticut making marriage fundamental because “it supports a two person union unlike any other in its importance to committed individuals”; “it safeguards children and families and thus draws meaning from related rights of childrearing, procreation and education;” and finally the foundation that marriage has in our social order. Griswold v. Connecticut, 381 U.S. 479 Some of these reasons, noted by the Supreme Court of the United States, that make a marriage fundamental to our society, are also some of the reasons that build the elements of the proper course for dissolving a marriage. These reasons, like safeguarding children, and parent child relationships are reasons for marriage and are reasons why there is confusion and disruption in the divorce system when confronted with a same sex couple seeking a divorce. Therefore, understanding the history of the same sex marriage debate, and being able to note the motives of the court decisions, allows our Florida Divorce Attorneys to formulate sound legal arguments for our clients in our same sex divorce cases.

For many years, courts refused to even hear dissolution of marriage actions of same sex couples. For instance, in 2014, the case Oliver v. Stufflebeam came before the court.  The case arose from two females, married in the state of Iowa, but residents of Florida and petitioned the Florida courts for a dissolution of marriage action. Oliver v. Stufflebeam, 155 So. 3d 395 (2014). Florida dismissed the petition based on Florida Statutes 741.212 holding

“Marriages between persons of the same sex entered into in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic of foreign, or any other place of location, or relationships between persons of the same sex which are treated as marriages in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, are not recognized for any purpose in this state.” Id.

Petitioners argued such statutes should only apply to marriages and not divorces. Id. However, the court held, in order to grant a divorce, the court must concede that a “marriage” is irretrievably broken, in turn conceding there in fact was a marriage. Id. Therefore, the case was dismissed for lack of case or controversy. Id.

The courts overturned these rejections of same sex dissolution of marriage cases in 2015. In Brandon-Thomas v. Brandon-Thomas, 163 So. 3d 644 (2015), the facts are almost identical to the Oliver case, yet the court decided differently only a year later. In the present case, the same sex couple was married in Massachusetts but were residents of Florida. Id.  Danielle petitioned the court for a divorce and Krista countered the petition arguing that the state had no jurisdiction under Florida Statute 741.212. Id. However, the court took the decision from Oliver and expanded on its reasoning. Here, the court determined that statute 741.212 had “no rational relationship toward furthering any legitimate public policy that should preclude the dissolution of marriage case from going forward in a Florida Court.” Id. Summarized, the court used a rational basis analysis under the equal protection clause and found there to be no rational relationship between the public policy of a heterosexual marriage, and the preclusion of divorcing a same sex couple. Id.  Therefore, the court held the trial court could exercise jurisdiction and hear the petition for dissolution. Id.

Another key evolution of same sex issues in divorce cases came with timesharing disputes. When the court was confronted with a heterosexual divorce case, where minor children were involved, it was not until 2000 that the court determined that sexual orientation had no correlation to the ability to parent. For example, in cases such as Packard, Maradie, and Ward, a heterosexual couple came before the court seeking a divorce and to establish a child custody arrangement for the minor child. However, the mother of the child in each case was now involved in a same sex relationship. In each of the three cases, the court awarded custody to the father, “as it was in the best interest of the child to be raised in a traditional family environment…, and a homosexual environment was not traditional and could negatively impact the child…, as it would be exposing the child to inappropriate behavior.” These cases were determined between the years of 1996 and 1997.  It was not until 2000, in the Jacoby v. Jacoby case that the court found sexual orientation alone should not be considered a factor in timesharing. Jacoby v Jacoby, 763 So. 2d 410 (2000). Once again, mother and father were involved in a dissolution of marriage where custody of children was involved. Id. The mother was a homosexual living with her lesbian partner. Id. The trial court awarded custody to the father, penalizing the mother for her homosexual behaviors. Id. However, the court of appeals reversed the judgment, holding that a parent should not be penalized due to their sexual orientation without evidence that such conduct harms the children. Id.

We at the Virga Law Firm and our Florida Divorce Attorneys understand the case law surrounding same sex divorce, parental rights, and custody issues. We are knowledgeable in these areas and seek to always protect the rights of our clients by staying informed of the case law, and fighting for the fair and equitable determinations in our cases. If you are engaging in a same sex divorce case, contact our Florida Divorce Attorneys who can walk you through this process, with a complete understanding of the unique issues that may arise.

Speaking to an attorney at our Florida office is free of charge, and we accept calls 24 hours a day, 7 days a week. Contact us at 850-307-5211 or complete an online contact form to get in touch with a member of our team today.

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