Tag Archive for: gay marriage

Florida Bar Family Law Section Moves To File Brief In Same Sex Divorce Appeal

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The Family Law Section of the Florida Bar, representing over 4,000 attorneys and affiliate members, has decided to file a brief in a divorce appeal in favor of the right of same sex spouses in Florida to divorce.  The Family Law Section is joined by the American Academy of Matrimonial Lawyers (“AAML”) in what is believed to be the first same sex divorce case in Florida to challenge the state’s Defense of Marriage Act and constitutional amendment banning “gay marriage.”

As an attorney for one of the spouses – who were married in Massachusetts, moved to Florida, and filed for divorce in Hillsborough County – I welcome the support of the Family Law Section and AAML.

In their motion requesting permission to file an amicus brief, the Family Law Section and the AAML write the following:

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Tampa Tribune: Florida Gay Marriage and Gay Divorce Cases

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As I wrote in a previous post, a Florida Circuit Court judge in Monroe County (in the Florida Keys) declared that Florida’s ban on same sex marriage is unconstitutional.  Though that ruling was stayed (not put into effect) pending appeal, a Miami-Dade judge made a similar ruling this past week, which was also stayed.

A few days before the Miami ruling came out, I was interviewed by Elaine Silvestrini of the Tampa Tribune about my Tampa same sex divorce case now under appeal in the Second District Court of Appeals and how the Florida Keys ruling may or may not affect the divorce case.  Below are some excerpts of the Tampa Tribune article:

Although the decision [to permit same sex marriages] has no force of law in the rest of the state, lawyers [in the same sex divorce case] say it may help their case for divorce equality.

“It’s not authoritative, but it provides a little bit more persuasion,” said Adam Cordover, who represents [one of the divorcing spouses]. “It shows that yet another court has ruled in favor of marriage equality. The currents of history are in favor of marriage and divorce equality.”

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BREAKING NEWS – Florida Judge Permits Same Sex Marriage Licenses in Florida Keys

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Yet another judge has declared a ban on same sex marriages to be unconstitutional, and this one occurred right here in Florida.  The Honorable Luis M. Garcia found the law preventing the Clerk of Monroe County from issuing marriage licenses to same sex couples invokes a fundamental right and has no rational basis and, accordingly,  violates the Equal Protection and Due Process Clauses of the U.S. Constitution.

The order reads, in part, as follows:

Due Process Clause

***

There is no dispute by the parties that the right to marry is a fundamental right protected by the Fourteenth Amendment.  The parting-of-the-ways occurs on whether the right to marry belongs to the individual and that individual’s choice of spouse or whether the state has the authority to dictate one’s choice in spouse to the opposite sex.

***

This court concludes that a citizen’s right to marry is a fundamental right that belongs to the individual.  The right these plaintiffs seek is not a new right, but a right that these individuals have always been guaranteed by the United States Constitution.  Societal norms and traditions have kept same-sex couples from marrying, like it kept women from voting until 1920 and forbid interracial marriage until 1967.

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BREAKING NEWS: Tampa Same Sex Divorce Dismissed by Trial Judge; Parties to Appeal

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Many people have been following a matter that I am involved in, the same sex divorce case in Tampa, Florida.  Well, the judge just issued her ruling, and she dismissed the amended petition for dissolution of the parties’ marriage.

In her order, Judge Lee writes the following:

The Petitioner filed her initial Petition for Dissolution of Marriage on January 15, 2014.  Thereafter, the parties entered into the collaborative divorce process and successfully completed that process.  As a result, the parties voluntarily entered into a Collaborative Marital Settlement Agreement on March 14, 2014.  Subsequently, on March 17, 2014, the Petitioner filed her Amended Petition for Dissolution of Marriage and asked the court to accept jurisdiction of the subject matter, dissolve the marriage of the parties, and adopt and incorporate the Collaborative Marital Settlement Agreement into a Final Judgment of Dissolution of Marriage.

RELATED: Tampa Same Sex Divorce and Collaborative Practice

As alleged in the Amended Petition, the parties married …in the State of Massachusetts.  The parties are a same-sex couple. While the State of Massachusetts authorizes and recognizes same-sex marriages, by current law the State of Florida does not authorize or recognize such unions.

Specifically, in 2008, Florida citizens amended Article I of the Florida Constitution by voter initiate to provide as follows:

Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.  Art. I, s. 27, Fla. Const.

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Texas Judge Rules Denial of Same Sex Divorce Unconstitutional

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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.

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Tampa Same Sex Divorce and Collaborative Practice

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Same Sex Couple Seeks Divorce in Florida

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.

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Dalai Lama Voices Support for Same Sex Marriage

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Supporters of marriage equality just got one more ally. According to a report by ABC News, the Dalai Lama has voiced his support for marriage by individuals of the same sex.

The Dalai Lama has joined the growing chorus of people who support gay marriage, the exiled Tibetan religious leader said during his latest visit to the United States.
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Florida Same Sex Spouses’ Federal Benefits Clarified

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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.

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BREAKING NEWS: Florida Same Sex Couples Sue to Overturn State DOMA

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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.

Florida Same Sex Relationships: Do I Need To Adopt My Child?

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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?

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