A couple of weeks ago, the Washington Post reported that an army soldier convicted of leaking classified materials had changed her legal name from Bradley Manning to Chelsea Elizabeth Manning. Ms. Manning’s name change has come after her public acknowledgment that she is transgender.
So could Chelsea Manning have been granted a name change in Florida?
In a case with many similarities to the Florida same sex divorce matter being deliberated here in Tampa, a district judge in Texas has ruled that, despite that state’s same sex marriage ban, two women should be permitted to divorce. In fact, according to the Daily Kos, the Texas judge ruled that their Defense of Marriage Act is unconstitutional, and so this divorce case should proceed like any other divorce:
Judge Barbara Nellermoe, in a five-page ruling released Tuesday, pinpointed three portions of the Texas Family Code as unconstitutional, as well as Section 32 of the Texas Constitution. Nellermoe wrote that “in a well-reasoned opinion by Judge Orlando Garcia, the federal district court found that a state cannot do what the federal government cannot – that is, it cannot discriminate against same-sex couples.”
The trial judge found that the state had no rational basis to deny recognition of same sex married couples. Judge Nellermoe also found that “Texas’ denial of recognition of the parties’ out-of-state same-sex marriage violates equal protection and due process rights when Texas does afford full faith and credit to opposite-sex marriages celebrated in other states.”
According to the Austin Statesman, Texas Attorney General Greg Abbot subsequently responded by asking the 4th Court of Appeals to stay, or pause, Judge Nellermoe’s proceedings, and the appellate court granted that request. This does not mean that the appellate court will reverse Judge Nellermoe’s ruling; it just means that it will hear arguments, set for May 5, and make a determination later.
Same Sex Couple Seeks Divorce in Florida
I have recently been involved in a Tampa family law matter that has made a couple of headlines lately. I represent a client who married her wife in Massachusetts, they moved to Florida, and ultimately they decided that their same sex marriage was irretrievably broken. The women reached a full settlement on all their marital issues, and, as the media has reported, now they are asking the court to grant them a divorce.
Related: In a Florida Child Custody Case, Does It Matter that I am Gay?
Related: Five Legal Steps Florida LGBT Parents Should Take
What has gotten far less attention is the fact that the women reached a full settlement agreement and formed a united front using the private collaborative family law process.
Unlike the more familiar divorce proceedings where parties hire gunslinger lawyers and have their dirty laundry aired in public courthouses, these women each retained a collaboratively-trained attorney (Ellen Ware and myself) who are experienced in respectful and interest-based negotiations. We attorneys were hired specifically to focus on reaching an amicable settlement in private offices; we both agreed that we would not inflame the situation by “building a case” against the other party and bringing arguments between the clients into the public courtroom.
United States Attorney General Eric Holder has announced policy changes in the wake of the landmark Supreme Court case of U.S. v. Windsor, which struck down portions of the federal Defense of Marriage Act. According to the Tampa Bay Times, the policy changes, which will treat same sex marriages equal to opposite sex marriages for purposes of federal benefits, include the following:
In a new policy memo, the department will spell out the rights of same-sex couples, including the right to decline to give testimony that might incriminate their spouses, even if their marriages are not recognized in the state where the couples live.
Under the policy, federal inmates in same-sex marriages will also be entitled to the same rights and privileges as inmates in opposite-sex marriages, including visitation by a spouse, escorted trips to attend a spouse’s funeral, correspondence with a spouse, and compassionate release or reduction in sentence based on the incapacitation of an inmate’s spouse.
Related: 5 Legal Steps Florida LGBT Parents Should Take
In addition, an inmate in a same-sex marriage can be furloughed to be present during a crisis involving a spouse. In bankruptcy cases, same-sex married couples will be eligible to file for bankruptcy jointly. Domestic support obligations will include debts, such as alimony, owed to a former same-sex spouse. Certain debts to same-sex spouses or former spouses should be excepted from discharge.
According to the Tampa Bay Times, six same sex couples in Florida are suing to overturn Florida’s Defense of Marriage Act (“DOMA”). The couples claim that DOMA, which defines marriage as a union between one man and one woman and establishes that Florida will not recognize same sex marriages performed in other states or territories, violates their equal rights under the Constitution of the United States.
This suit comes on the heals of successful lawsuits in Utah and Oklahoma which overturned those states’ same sex marriage bans. This also comes in the wake of the U.S. Supreme Court case of U.S. v. Windsor, which struck down portions of the Federal DOMA but left state DOMAs intact.
Related: Five Legal Steps Florida LGBT Parents Should Take
Florida’s DOMA, contained in Florida Statutes section 741.212, reads as follows:
(1) Marriages between persons of the same sex entered into in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, or relationships between persons of the same sex which are treated as marriages in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, are not recognized for any purpose in this state.
In general, when a baby is born in an intact marriage, that baby is considered the legal child of both spouses. Similarly, when a married person adopts a child, that child is oftentimes considered the legal child of that married person and his or her spouse.
But what is the status of a child in Florida born of or adopted into a same sex marriage? In other words, if two men or two women are married in another state, move to Florida, and have a baby, is that baby considered the legal child of both spouses?
In a landmark decision in the matter of D.M.T. v. T.M.H., the Florida Supreme Court ruled that a woman who donated her fertilized egg to her partner, who in turn gave birth to a child, has a right to parent the child.
Last year I summarized the facts of this case when it was going through the Fifth District Court of Appeals of Florida:
Two women are in a committed lesbian relationship when they decide to have a child together using reproductive technologies. One woman (the “Genetic Mother”) supplies the egg and has it fertilized. That egg is then implanted into her partner (the “Birth Mother”) who gives birth in 2004.
Back in June, shortly after the groundbreaking ruling in U.S. v. Windsor, I wrote a post in which I asked whether Florida same sex partners would get federal benefits. Though the ruling struck down parts of the federal Defense of Marriage Act (“DOMA”), it did not touch on state DOMAs. Further, part of the rationale for the Windsor ruling was that marriage laws should be consistent within states so that if a state recognized gay marriage for the purpose of state benefits, then the federal government should recognize gay marriage in that state for the purpose of federal benefits.
But would the federal government recognize the marriage of those same sex couples who legally got married in one state, but then moved to a state, such as Florida, that did not recognize same sex marriage?
The answer, at least for one benefit, appears to be yes.
Transgender residents of Florida, just like all other residents, have the right to petition the court for change of a legal name. As in every name change case, whether the petition will be granted is determined by the following eligibility guidelines:
In yesterday’s U.S. Supreme Court Opinion striking down portions of the federal Defense of Marriage Act (“DOMA”), Justice Anthony Kennedy outlined some of the federal marriage benefits that DOMA affected:
By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive…It deprives them of the Bankruptcy Code’s special protections for domestic-support obligations…It forces them to follow a complicated procedure to file their state and federal taxes jointly…It prohibits them from being buried together in veteran’s cemeteries.
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DOMA also brings financial harm to children of same-sex couples. It raises the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses…And it denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of a family security.
U.S. v. Windsor, 570 U.S. ___ (2013).
So, now that portions of DOMA have been overturned, are Florida same sex couples eligible for federal marriage benefits?
