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Some hope for Florida same-sex couples seeking divorce

Most married couples consider divorce as an unfortunate yet necessary event. After all, when spouses decide to end their marriages, there often remains important decisions that need to be made. For example, which spouse should have primary physical custody of the children? Couples also need to determine whether they will sell marital property and then split those proceeds.

Until recently, same-sex couples living in Florida were not allowed to divorce, and thus denied those same legal determinations that opposite sex couples routinely enjoy. That is because of Florida's 2008 ban of same-sex marriages.

The restriction against same-sex divorce could potentially pose other legal issues. Theoretically, spouses unable to divorce each other would be forced to remain celibate even after becoming separated. Currently, Florida's laws against adultery prohibits any married person from openly engaging in adulterous behavior with another person. Adultery is considered a misdemeanor in the second degree and is punishable against both persons involved by a $500 fine and 60 days in county jail.

The good news for same-sex couples seeking divorce is that several recent cases have found that Florida's ban on same-sex marriage denies some Floridians seeking divorce their rights to due process and equal protection under the law. On Dec. 10, a South Florida judge upheld an earlier ruling that the unconstitutionality of the Florida ban against same-sex marriage should not prevent those couples from divorcing. Two other similar cases are now pending appeal in Florida's 3rd District Appeals Court.

Unfortunately, the looming legal battle between the proponents of the same-sex marriage ban and advocates for civil rights can cause a great deal of uncertainty for some couples seeking divorce. If this applies to you then you should know that your Florida family law attorney can advise you in determining the most appropriate legal strategy for your current situation.

Source: Miami Herald, "Broward judge invalidates Florida’s gay-marriage ban, grants divorce to lesbian and same-sex partner" Steve Rothaus, Dec. 17, 2014

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