Same-sex marriage dissolution allowed in Florida


Florida has jurisdiction to dissolve the marriage of same sex couples who were married in other states.  In this case, a same sex couple married in Massachusetts and subsequently moved to Florida.  The relationship soured and one party filed for dissolution.  The other party challenged the ability of the Florida courts to hear the dissolution case claiming that Florida did not recognize gay marriage (see Florida’s Defense of Marriage Act, Florida Statutes 741.212 and article I, section 27 of the Florida Constitution).  The state of Florida joined in on the appeal arguing along with one of the parties that Florida courts cannot dissolve such a marriage because it would effectively providerecognition of the marriage, contrary to Florida’s public policy.  According to the 2nd DCA, while sexual orientation is not a protected class entitled to strict scrutiny analysis, the state of Florida bears the burden of presenting only a legitimate purpose for the law or statute.

No rational basis for the refusal to allow the requested dissolution.  First, the argument that there needed to be “ a societal inducement for opposite-sex couples to marry, thus decreasing the percentage of children accidentally conceived outside of a stable, long-term relationship” ignored the fact that, biologically, same sex couples cannot accidentally conceive.  Further, the States argument that allowing the dissolution would thwart Florida’s “long-standing history of defining marriage as being between a man and a woman.”  However, the 2nd DCA found that the dissolution would actually support this “long-standing history” by stating that:

“If the policy is to prevent, eliminate, discourage, or otherwise preclude same-sex marriage in Florida, permitting the courts to dissolve same-sex marriages that have been previously entered into in other states would arguably further that policy by reducing the number of same-sex married couples in Florida”

Further, to allow otherwise would keep the parties financially bound to one another without any forum to be heard regarding their claimed rights to their assets and their child.

The challenging spouse and the Attorney General failed to establish that Florida Statutes section 741.212 or article I, section 27 of the Florida Constitution bear any rational relationship toward furthering any legitimate public policy that should preclude the dissolution of an out of state marriage.

HARRIS v HARRIS: April 17, 2015 Fla 5th DCA:

Trial court abused its discretion by using different standards for calculating each spouse’s income.  While wife was imputed minimum wage for a forty-hour work week, trial court did not  consider her reserve pay.  Husband was imputed minimum wage in addition to his pension and disability.  Trial court was also asked to revisit its finding that Wife only received $400 to $600 a month from the Reserves as record evidence appeared to support a higher figure.  Finally, court erred in awarding Wife attorney’s fees when Wife explicitly indicated that she reserving her claim for attorney’s fees for a separate hearing and that hearing had not been held.

GILLIARD v. GILLIARD: April 24, 2015 Fla 5th DCA

Trial court erred in numerous ways regarding equitable distribution and alimony award.  Court improperly ruled that a consolidated debt of $56,000.00 would be the responsibility of Husband when it was clear that it was a marital debt.  The Court also erred by equally distributing Husband’s TSP account but not taking into consideration the partial liquidation of the account during litigation to pay for Wife’s attorney’s fees.  This resulted in a double-dip by Wife.  The court also failed to place any value on the parties’ automobiles, furniture and furnishings despite the fact they had more than a de minimis value.  While the trial court is not precluded from making an inequitable distribution it must make specific findings as to each factor listed in section 61.075(1)(a)-(j), Florida Statutes.  The trial court also erred in its award of permanent alimony.  While permanent alimony may be appropriate, the Court calculated the amount improperly by using husband’s gross income as opposed to his net income.  Further, the trial court erred in considering Husband’s future retirement benefits as current income.  Finally, the court failed to make specific findings in its judgment as to all of the factors set forth in section 61.08(2), Florida Statutes to justify the type of alimony awarded.


BROGA v. BROGA: April 15, 2015 Fla 1st DCA

While Husband was voluntarily unemployed (although he refuted this at trial) the Court failed to specifically address the availability of jobs for which he was qualified before imputing income.  Evidence of former husband’s prior earnings are not, in and of themselves, enough.  Trial court also failed to make findings of fact regarding the necessity, cost, and availability of life insurance before ordering husband to provide it to secure child support.  Finally, the trial court erred by double counting a 529 Savings Plan for purposes of equitable distribution.

Posted by Roy Smith on Apr 27th 2015