Lake Worth, Fla. – Broward Circuit Judge Dale Cohen is the third judge in Florida to rule the 2008 ban on same-sex marriage as unconstitutional, but this time it stems from a divorce.
Cohen’s Aug. 4 ruling both overturns the ban and requires recognition of gay couples legally married out-of-state. It applies to Broward County only.
The lawsuit was filed by Heather Brassner, who wants to dissolve her civil union to Megan Lade, who left her four years ago. Brassner and Lade divided up their belongings and separated, but Brassner is still locked into a civil union. Brassner wishes to be granted a divorce so she can seek a civil union with her current girlfriend, Jennifer.
Nancy Brodzki, a board certified attorney in marital and family law, represented Brassner.
“Originally, I told her the chances of her getting a divorce in Florida were not good because of the constitutional amendment that was enacted in 2008 that prevented courts and any state agencies from recognizing same-sex marriage, civil unions or anything that was the substantial equivalent of marriage,” Brodski said.
It wasn’t until the Supreme Court issued the Windsor decision, which struck down the Defense of Marriage Act, did Brodzki believe Brassner could have a chance of having a divorce filed and granted in Florida.
With help from Brodzki, Brassner filed for divorce in September 2013. She sought to file in Florida because in Vermont both spouses must sign papers agreeing to the dissolution, and Brassner did not know where Lade was. She hired a private investigator, who couldn’t find her either.
She then had to follow the divorce process set by the courts on how to proceed when one of the spouses cannot be found. According to an affidavit, a notice of the lawsuit was published in the paper for four consecutive weeks at least once a week. The clerk, after waiting 20 days, issued a default, which is a formality that says the other side was served by publication and did not respond.
“In a heterosexual divorce, that would have then entitled Heather to get an uncontested divorce, and it would have been over,” Brodzki said.”But because it’s a same-sex couple, the judge indicated at that hearing that he needed to determine the constitutionality of the ban on recognizing same-sex marriage and civil unions.”
A motion for declaratory judgment was filed. “The problem is that until an appellate court has ruled, we don’t have a precedent that other judges can say ‘Well, this is what the appellate court says and we follow what the appellate courts say,'” Brodzki explained.
Brassner seeks the divorce in Florida—partly because her family and job are located in the state—because in order to go through the divorce process in Vermont, she would have to be a resident for at least a year. In Florida, six months of residency are required to file for divorce. However Florida, unlike Vermont, doesn’t recognize same-sex marriages or civil unions.
Two other judges—in Monroe County and Miami-Dade—have ruled the 2008 ban unconstitutional, but Florida Attorney General Pam Bondi filed appeals which triggered an automatic stay on the rulings.
“What we hope that comes out of this case is that the discrimination against same-sex couples comes to an end and that same-sex couples are allowed to get married and raise children together and get a divorce if that’s what needs to happen—just like heterosexual couples,” Brodzki said. “They just want to be treated the same.”
