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Tampa Same Sex Divorce Case First DOMA Challenge Certified to Florida Supreme Court

Can two women who were married in Massachusetts but now are residents of Florida divorce in Florida?  That is the question that my Tampa client and her wife were looking to have answered in the affirmative.  The trial judge determined that she did not have the power to dissolve a marriage that the State of Florida did not recognize.

When we appealed, we asked a panel of judges to skip the normal appellate process and go straight to the Florida Supreme Court.  Our argument was that this case involves issues of such public importance, and that determining whether married couples of the same sex can divorce affects the administration of justice throughout the state.  Our request for the expedited process was denied.

And then we got word yesterday.  The judges of the Second District Court of Appeals decided en banc (with the input of all of the judges of the Court, excluding a judge who had recused himself) that this case should go straight to the Florida Supreme Court.

Below are portions of the brand new ruling:

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Prenuptial Agreements: Uniform Premarital Agreement Act

No matter the reason that parties enter into a prenuptial agreement, there are certain issues that may be agreed upon and other issues that Florida public policy prohibit parties from agreeing on prior to marriage.

For example, a clause in a prenuptial agreement defining a visitation or time-sharing schedule with respect to the parties’ unborn children would not be enforceable.  This is because a time-sharing schedule must be based on the best interests of a child, and it is difficult to define and anticipate those best interests before the child is born.  Similarly, a prenuptial agreement may not restrict a child’s right to financial support.

So, what may be agreed upon in a prenuptial agreement?  Section 61.079 of the Florida Statutes, known as the “Uniform Premarital Agreement Act,” specifically states that the following may be settled in a prenuptial agreement:

1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

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Video: Alzheimer’s and Divorce

Recently, religious broadcaster Pat Roberson made controversial comments regarding whether a person should divorce a spouse with debilitating case of Alzheimer’s disease:

The fact is that a spouse may have an unimaginably difficult and deeply personal choice of how to handle this type of situation.  But it is a decision that Florida marital and family law has contemplated.

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Is Florida the Correct State for My Child Custody Issue?

Under chapter 61, Florida Statutes, a Florida court generally has jurisdiction for a new custody case (such as (i) divorce involving children’s issues/parenting plan, (ii) paternity/ establishment of time-sharing schedule, or (iii) temporary or concurrent custody of a child by a relative) only if one of the following is true:

  • The child has lived in Florida for at least six months immediately prior to the case being filed (even if the child is or has been temporarily absent from Florida);
  • The child has moved from Florida within the past six months, but prior to that lived in Florida for at least six months; or
  • No other state or country has jurisdiction over the child (or the court of the child’s home state or country has declined jurisdiction) and the child has significant connections to Florida.

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Special Issues in Military Divorce

If you are in a family law matter involving a servicemember, you will encounter some unique issues to which you must pay special attention.

Residency Requirement

Generally, one party to a divorce must have been a resident of Florida for at least six months prior to filing.  However, there is an exception for servicemembers.  A servicemember (or his or her spouse) who is not currently in Florida may petition for divorce in Florida if he or she (i) was a Florida resident prior to entering the military and (ii) never established a permanent residence elsewhere.  Even if the military member had not lived in Florida prior to entering the service, he or she may still be able to file for divorce in Florida if he or she is deployed but has an intent to remain a permanent Florida resident.  Such intent may be evidenced by the following: (i) Florida voter registration; (ii) ownership of a Florida home; or (iii) registration of a vehicle in Florida.

Servicemembers Civil Relief Act

Many of the military issues in a divorce stem from the Servicemembers Civil Relief Act (the “SCRA”).  The SCRA was signed into law in 2003 and updated and replaced the Soldiers and Sailors’ Civil Relief Act of 1940.  Most provisions of the SCRA apply to the following people on active duty:  (i) members of the Army, Navy, Air Force, Marine Corps, and Coast Guards; (ii) members of the National Guard; and (iii) commissioned officers of the Public Health Service and National Oceanic and Atmospheric Administration.

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Uniform Child Custody Jurisdiction and Enforcement Act Affidavit

The Uniform Child Custody Jurisdiction and Enforcement Act (known as the “UCCJEA”) is the body of law that provides Florida courts with authority to rule on issues of child custody.  In virtually every family law proceeding that involves child custody–including divorce, paternity, and relocation–each party is required to file an affidavit that contains certain information and demonstrates to the court that it has jurisdiction over the child. This UCCJEA affidavit must include the following information:

  • The current address of the child;
  • Each address at which the child has lived during the past five years;

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Section 61.538, Florida Statutes

Role of state attorney.—

(1)In a case arising under this part or involving the Hague Convention on the Civil Aspects of International Child Abduction, the state attorney may take any lawful action, including resort to a proceeding under ss. 61.524-61.540 or any other available civil proceeding, to locate a child, obtain the return of a child, or enforce a child custody determination, if there is:

(a)An existing child custody determination;

(b)A request to do so from a court in a pending child custody proceeding;

(c)A reasonable belief that a criminal statute has been violated; or

(d)A reasonable belief that the child has been wrongfully removed or retained in violation of the Hague Convention on the Civil Aspects of International Child Abduction.

(2)A state attorney acting under this section acts on behalf of the court and may not represent any party.

History.—s. 5, ch. 2002-65.

Section 61.542, Florida Statutes

Transitional provision.—

A motion or other request for relief made in a child custody proceeding or to enforce a child custody determination that was commenced before the effective date of this part is governed by the law in effect at the time the motion or other request was made.

History.—s. 5, ch. 2002-65.

Section 61.541, Florida Statutes

Application and construction.—

In applying and construing this part, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

History.—s. 5, ch. 2002-65.

Section 61.540, Florida Statutes

Costs and expenses.—

The court may assess against the nonprevailing party all direct expenses and costs incurred by the state attorney and law enforcement officers under s. 61.538 or s. 61.539 so long as the court has personal jurisdiction over the nonprevailing party.

History.—s. 5, ch. 2002-65.