Tag Archive for: LGBT family law rights

Keiba Shaw Media Statement on Tampa Same Sex Divorce Appeal

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On May 29, 2015, Florida’s Second District Court of Appeal released its opinion in the matter of Shaw v. Shaw.  It determined that Florida should give full faith and credit to a same-sex marriage entered into under the laws of Massachusetts, and that Florida courts have the authority to dissolve the marriage.

This has been a long, tough road, but this is truly a great day for equality.

Keiba Shaw has authorized the release of the following statement:

An uncontested divorce between a man and a woman in Florida can be resolved in as little as a month. That’s just four weeks to dissolve a negative situation that both parties agree needs to end. It doesn’t matter how long they were married or WHERE they were married.

My [soon-to-be] former spouse and I used a next generation process, collaborative divorce, that was designed to resolve conflicts in a manner that was private, non-litigated, peaceful, and respectful. We reached a full agreement on all issues in two meetings that were one week apart.

And yet, because my former spouse and I are both women, my divorce has taken more than a year to be granted and has unnecessarily disrupted my life and that of my family members. The legal complexities have limited my options and the resulting financial burden has made it harder to take care of my family the way I envisioned.

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Florida Same-Sex Marriage – Will I Be On My Child’s Birth Certificate?

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It has long been the law in Florida that when a child is born during an intact marriage between a man and a woman, the husband shall be placed on the birth certificate.  Generally, this is the case even if the husband is not the biological father of the child; the right of the child to be considered “legitimate” is so strong that it does not matter whether there is an actual genetic connection between the child and the father.

Now that Florida’s ban on same-sex marriage has been declared unconstitutional by a federal judge and marriage licenses are being provided to same-sex couples, will a hospital put a woman on a birth certificate if her wife gives birth?

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Can I Now Divorce My Same-Sex Spouse in Florida?

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Last week, Federal Judge Robert L. Hinkle clarified his ruling in Brenner v. Scott to state, definitively, that the U.S. Constitution requires Florida clerks of court to issue marriage licenses to same-sex couples.  This has brought great jubilation that marriage equality is finally recognized in Florida.  Clerks throughout the state (including in my own Hillsborough County) have begun issuing marriage licenses, and some even have officiated over marriages.

Hillsborough County Clerk of the Court Pat Frank Officiates Over a Mass Same-Sex Wedding

Hillsborough County Clerk of the Court Pat Frank Officiates Over a Mass Same-Sex Wedding

However, is same-sex marriage yet completely equal in Florida?  Is it recognized for all purposes in Florida, including for purposes of dissolving that marriage?

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Tampa Same Sex Divorce Appeal: Text of Answer Brief

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We know all men are not created equal in the sense some people would have us believe – some people are smarter than others, some people have more opportunity because they’re born with it, some men make more money than others, some ladies make better cakes than others – some people are born gifted beyond the normal scope of most men.

But there is one way in this country in which all men are created equal – there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president.  That institution … is a court.  It can be the Supreme Court of the United States or the humblest [lower] court in the land. . . . Our courts have their faults, but in this country our courts are the great levelers, and in our courts all men are created equal.

Lee, Harper. To Kill a Mockingbird, pg. 274 (1960).  Mockingbird is a timeless novel set in the fictional town of Maycomb, Alabama in the 1930’s.  Discrimination was the norm and “separate but equal” ruled the day.  Plessy v. Ferguson, 163 U.S. 537 (1896).  The words are from a different time, yet they apply directly to the laws being challenged in this Court.

You can find the answer brief in the Tampa same sex divorce appeal at the following link: 2D14-2384 Shaw Appellee’s Answer Brief.

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Attorney General Seeks to Prevent Tampa Same Sex Spouses’ Divorce

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Florida Attorney General Pamela Bondi has filed a motion to intervene in my client’s same sex divorce matter.  The parties married in Massachusetts, moved to Florida, came to a full settlement agreement via the Collaborative Divorce Process, and asked a Hillsborough Judge to dissolve their marriage.  Their request was denied and their case dismissed.  The case is now in the Second District Court of Appeals.

The Tampa Tribune has reported the development as follows:

Attorney General Pam Bondi may be fighting to prevent same-sex couples from marrying in Florida, but she is also taking a legal position that has the effect of forcing gay couples who married elsewhere to stay married, lawyers in a Tampa case say.

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

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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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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

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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.

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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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