Same-sex Divorce in Florida

Florida’s Second DCA permits same-sex divorce

On April 24, 2015, the Second District Court of Appeal in Florida, overturned a lower court’s dismissal of a petition to dissolve a same-sex couple’s marriage. The case is Danielle Brandon-Thomas v. Krista Brandon-Thomas, Case No. 2D14-761, Second DCA April 24, 2015.  The parties were married in Massachusetts in 2012 and subsequently moved to Florida. The parties had a minor child. Danielle filed for a petition for dissolution of Marriage in October 2013, requesting that the court determine parental responsibility, child support issues as well as equitable distribution. Krista who is the birth and genetic mother of the minor child, opposed the petition.

In a per curium opinion the court held that the state and Krista Brandon-Thomas, failed to offer rational reasons for Florida law to block the request for a divorce. Many analysts believe that although the decision is written narrowly the decision is a major step in recognizing equal rights for same-sex couples. The decision seems to stand for the proposition that same-sex couples should be treated equally under the Florida Constitution and the U.S. Constitution. This is a historic ruling in the State of Florida where there has been no protection of sexual orientation or of same- sex couples.

This case was not about same-sex marriage like so many of the other cases that have been in the federal and state courts and the news over the past year, rather some of the Second District Court of Appeal judges stressed in their concurring opinions that Brandon-Thomas v Brandon-Thomas is not really about marriage, but rather “access to courts” to carry out a dissolution of a relationship, including assets, property and child custody.

“The more precise definition of the right [sought in this case] makes it easier to apply the constitutional principles of equal protection and due process,” Judge Edward C. LaRose wrote in a concurring opinion. “With such precision, we need not wade into the broader legal and societal issue of the right of same-sex individuals to marry.”

Same-sex marriages have been carried out in Florida since the beginning of the year, when state and federal stays were lifted on rulings overturning the state’s statutory and constitutional bans, but state Attorney General Pam Bondi has maintained her legal fight against those findings.

In the current case, Krista Brandon-Thomas argued that because Florida state law — specifically Section 741.212, known as Florida’s Defense of Marriage Law — does not recognize same-sex marriage, the state courts lack jurisdiction over this matter. The Florida Attorney General’s Office intervened in the case in September. The trial court dismissed the petition on the grounds that it was bound by state law, but the appeals court pointed to the Full Faith and Credit Clause of the U.S. Constitution in reversing and remanding the matter for further proceedings on the merits.

“There are circumstances in which a state might seek to give full faith and credit to some out-of-state laws and judgments but not others, based on public policy considerations. But a state may not do so in a manner that runs afoul of the Equal Protection Clause of the United States Constitution,” the lead opinion said.  Since sexual orientation is not a protected class under Florida state law, see D. M. T. v. T.M.H., 129 So. 3d 320 (Fla. 2013), the Second District held that the right of a same-sex couple to seek dissolution of marriage in Florida for a valid out-of-state marriage is not a fundamental right for U.S. constitutional purposes; therefore, the state had to pass only a rational basis test in its arguments. Under the rational basis standard a law will be upheld if it advances a legitimate government interest, even if the law seems unwise or discriminatory.  But even at this intermediate level of scrutiny, the opposition failed to present a legitimate reason for the law to preclude the state court from taking jurisdiction in this matter, the appeals court said, noting that it bordered on being illogical.

The attorney general argued that the state’s refusal to recognize same-sex marriage follows its long-standing history of defining marriage as being only between a man and a woman, but the appeals court found that refusing to allow state courts to dissolve such unions “will not further this stated public policy in any manner.”

The fact that there is a child involved was important to the court in that the best interests of the child could not be addressed by the court if the couple could not utilize the dissolution statute that applies to heterosexual couples. The judges wrote:

“The practical impact of the trial court’s order is that a validly married couple, albeit of the same sex, cannot access a Florida court to undo their marriage. The couple’s financial affairs remain intertwined, and their joint assets, if any, are not easily transferred. The trial court’s order impedes the flow of assets and capital. Particularly significant, the welfare and stability of a child parented by this couple remains in limbo. The fact that a child is involved implicates Florida’s strong public policy to protect children by determining custody matters in accordance with the best interests of the child. Our decision today protects the parties’ rights of access to the court for dissolution of their marriage and an opportunity to be heard regarding their claimed rights to their assets and the child”.  See Brandon-Thomas v. Brandon-Thomas.

At this point Krista Brandon-Thomas will have to decide whether to appeal the ruling or move forward with the dissolution proceedings in the trial court.

Judges Craig C. Villanti, Edward C. LaRose and Darryl C. Casanueva sat on the panel for the Second District.

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