Tag Archive for: LGBT family law rights

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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Could Chelsea Manning Have Received A Legal Name Change in Florida?

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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?

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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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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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Florida Supreme Court Rules Lesbian Egg Donor Has Right to Partner’s Child

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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.

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Florida Same Sex Married Couples To Be Eligible For Federal Tax Benefits

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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.

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