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What Does Brenner v. Scott Mean for Same-Sex Marriage and Divorce?

January 15, 2015

On Tuesday, January 5th, Florida officially began, for the first time, to recognize same-sex marriage. Prior to that date, the state of Florida neither performed same-sex marriages nor recognized same-sex marriages performed in other states. Now, however, both are legal, which raises other legal issues related to marriage, such as prenuptial agreements, divorce, parental responsibilities upon divorce, and many more.

Statutory History

In 1977, Florida adopted legislation both banning same-sex marriage and barring homosexuals from adopting. In 1997, Florida passed its own version of the federal Defense of Marriage Act, defining marriage as between one man and one woman and banning Florida from recognizing same-sex marriages performed outside of Florida. In 2008, Florida Amendment 2 (2008), an amendment to Florida’s state constitution, defined marriage as being between one man and one woman, and thus banned same-sex marriage and civil unions.

Brenner v. Scott

On August 21, 2014, Judge Robert Lewis Hinkle of the U.S. District Court for the Northern District of Florida issued an order in the matter of Brenner v. Scott. In that case, a Florida same-sex couple married in Canada filed suit in federal district court to ask the court to order the state to recognize their marriage. Judge Hinkle ruled that Florida’s statutory and constitutional bans on same-sex marriage are unconstitutional, and issued an injunction ordering the state to stop enforcing the bans. He also issued a temporary stay, which postponed enforcement of the ruling. The stay expired on Tuesday, January 5th, after the Eleventh Circuit Court of Appeals declined to extend it. The state has appealed the ruling to the Circuit Court.

The Effect

On January 1st, Judge Hinkle clarified his order from Brenner v. Scott, stating that the U.S. Constitution requires that all Florida county court clerks issue marriage licenses to same-sex couples. Additionally, Florida is now required to recognize all marriages performed in other states. As many as fourteen counties in Florida have stopped performing courthouse weddings for any couple, opposite-sex or same-sex, but they all must issue licenses.

Some are concerned about the ability of same-sex couples in Florida to divorce. In the recent case of Oliver v. Stufflebeam, the Third District Court of Appeals of Florida denied a same-sex couple, married in Iowa, the right to divorce. However, this was because the marriage had never existed in the first place under Florida law, since Florida law did not then recognize same-sex marriage, and the couple did not challenge the constitutionality of the bans on same-sex marriage. Since Brenner, Florida permits same-sex marriages and recognizes same-sex marriages performed in other states. Thus, there should be no legal impediment to the ability of same-sex couples in Florida to divorce, whether their marriages were performed in Florida or elsewhere.

If you need assistance navigating the new laws regarding same-sex marriage in Florida, please contact West Palm Beach family law attorney William Wallshein, who, with his decades of experience, can provide education and counseling on the intricacies of the law.

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