Today’s a big day for same sex couples in Florida. The U.S. Court of Appeals for the 11thCircuit refused to extend the stay on its previous ruling declaring Florida’s ban on same sex marriage to be unconstitutional. The current stay expires today, January 5, 2015. This means that, as of tomorrow, January 6, 2015, same sex couples in Florida will be able to legally apply for a marriage license.
Although, technically, the ruling only controls in the counties in the Northern District of Florida—the district in which a federal judge ruled the ban to be unconstitutional—it is anticipated to have a state-wide impact. In fact, on January 1, 2015, the Federal Judge Robert L. Hinkle, who entered the original order, clarified his ruling applied toall county clerks in Florida. He has ordered clerks statewide to begin issuing licenses beginning Tuesday, January 6, 2015.
In Orange County (Orlando), Circuit Judge Timothy Shae issued an order on December 31, 2014 granting the county clerk the authority to issue marriage licenses to same sex couples. Other counties will need follow suit or perhaps open themselves up to lawsuits (as warned by Judge Hinkle).
Judge Hinkle declared the state’s ban to be unconstitutional back in August 2014; however, he entered a stay of his order pending review by the U.S. Supreme Court. In October, the U.S. Supreme Court declined to review the case, as it had done in other similar cases from other states. By declining to review the case, the Court let Judge Hinkle’s decision stand.
Although, theoretically, if same sex marriage is now legal in Florida, it follows that same sex divorce also will be legal, the issue is still unclear. Several other cases throughout the state regarding same sex marriage and divorce are in various stages of resolution.
Most notably, the case to watch is that of a same sex couple in Hillsborough County, who were married legally in Massachusetts and subsequently filed for a divorce in Florida. A Hillsborough County Circuit Judge denied the divorce, essentially, because the judge found their marriage to be invalid in Florida. One cannot get divorced if they are not legally married.
Instead of reviewing the case, the 2nd District Court of Appeal bumped it up to the Florida Supreme Court. The Florida Supreme Court declined to review the case, however, and sent it back to the lower court. At that time, it was the opinion of the Court that the issue was not ripe for review by the state’s Supreme Court. (The Court indicated the issue did not impact the public at large, though it was important to this particular couple).
Several other cases regarding same sex marriage and divorce are working their way through the Florida courts, as well, and are a various stages of resolution. We anticipate Florida citizens soon will have clarification on the same sex divorce issue based on these, or other cases anticipated to arise within the coming years as Florida begins to legally marry more and more same sex couples.
If you and your same sex spouse are anticipating divorce, even if you were legally married in a state other than Florida, please contact our office to discuss the particulars of your case. We’d love to be of service.