Category: Same Sex Marriage & Divorce

Same Sex, Common Law Marriages

Florida deems common law marriages void. What about a common law marriage from another state? In many same-sex relationships, which were not legal until recently, that is now an issue.

Groundbreaking New Case

In South Carolina, Debra Parks wanted to be treated the same as anybody else. She wanted her relationship, which ended last year, to be considered a common-law marriage under South Carolina law. Parks is gay. But until 2014, same-sex marriage was illegal.

In a groundbreaking case for South Carolina, a Family Court judge has ruled that Parks and her former partner had a common-law marriage under state law. And the state must recognize that their common-law marriage has been legal for almost 30 years, the judge ruled.

The ruling means same-sex couples now have the same retroactive rights as heterosexual married couples, experts say. Those rights include alimony, health insurance, taxes, the division of property and others.

I’ve written about same-sex relationships before. The South Carolina ruling immediately becomes a legal precedent, and has the potential to impact thousands of people in same sex relationships because it backdates the period of effect to the beginning of the common-law marriage.

‘A rose by any other name would smell as sweet,’” the judge wrote. “The law established by the U.S. Supreme Court in Obergefell should be applied retroactively in South Carolina.”

Florida Common Law Marriages

South Carolina is one of eight states that recognize common law marriage. The case is important because same sex marriages were not recognized until 2014 and left an entire group of people “out in the cold” without the protections the law provides to heterosexual couples.

Florida law is different. No common-law marriage entered into after January 1, 1968, is valid in Florida.

The South Carolina case could create a conflict between Florida Statutes – which makes common law marriages in Florida void as of 1968, the Parks case, which recognizes the creation of same-sex, common law marriages in South Carolina.

The order states that Parks’ common law marriage is retroactive to the time when Parks divorced her husband while already living with her same sex partner. The larger question for interstate actions is whether Florida would give full faith and credit to the South Carolina judgment.

Interstate Problems

The generally established principle is that the validity of a marriage is determined by the law of the place where the marriage occurred. So, while Florida no longer recognizes common law marriages, nevertheless, it may to recognize the validity of common law marriages in other states.

Given the U.S. Supreme Court’s decision to recognize same sex marriage, everything else from the marriage follows including rights of the parties, including marital property, alimony, divorce, and anything else. The rights and duties of marriage now apply to same sex couples.

The South Carolina Herald article is here.

Big Same-Sex Marriage Update

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Friday, June 26, 2015.

The Supreme Court just decided Obergefell, ruling that the Constitution recognizes a right to same-sex marriage. This impacts Florida’s same-sex marriage and divorce problem.

I’ve written about same-sex marriage and divorce cases often. In Obergefell, Justice Kennedy wrote the opinion for the majority:

First – The right to personal choice regarding marriage is inherent in the concept of individual autonomy.

Second – The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.

Third – marriage safeguards children and families.

Fourth – Marriage is a keystone of our social order.

The majority holding:

The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.

Chief Justice Roberts is the primary dissenter:

Petitioners make strong arguments rooted in social policy . . . But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.

Justice Scalia advocated judicial restraint:

Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.

This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Justice Alito adds a twist:

[Today’s decision] will be used to vilify Americans who are unwilling to assent to the new orthodoxy. . . The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

Obergefell v. Hodges can be read here.

Same-Sex Divorce Update

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Thursday, June 11, 2015.

A year after being denied a divorce in Tampa, a same-sex couple appealed to the 2nd District Court of Appeal . . . and won. Fort Myers attorney, Luis Insignares, represented the appellant.

Danielle and Krista were legally married in Massachusetts in 2012. They subsequently moved to Florida. Once here, the marriage soured, and Danielle filed a petition for dissolution of marriage a year later.

Krista opposed the divorce, and in trying to stop it, argued that Florida did not recognize same-sex marriages, so the court could not dissolve her marriage.

Florida’s Defense of Marriage Act, supports Kristi’s argument. After trial, the circuit court judge agreed with Kristi, and dismissed the petition for divorce. Danielle appealed that dismissal order.

The Second District Court of Appeals reversed. The Full Faith and Credit Clause of the U.S. Constitution, requires Florida to recognize judgments obtained in the courts of other states, unless they violate public policy.

The Second District found that under Florida law, sexual orientation is not a protected class entitled to ‘strict-scrutiny’ analysis. The court applied a ‘rational basis’ analysis. The Court then went on to knock down every ‘legitimate purpose’ argument the State of Florida and Kristi raised.

For instance, the Attorney General claimed that Florida’s refusal to recognize same-sex marriages furthered Florida’s history of defining marriage as being between a man and a woman. However, refusing to allow Florida’s courts to dissolve same-sex marriages did not further this stated public policy in any manner.

The Second District panel was also concerned about denying parents access to court to undo a marriage:

The couple’s financial affairs remain intertwined, and their joint assets, if any, are not easily transferred . . . [this] impedes the flow of assets and capital. Particularly significant, the welfare and stability of a child parented by this couple remains in limbo. The fact that a child is involved implicates Florida’s strong public policy to protect children by determining custody matters in accordance with the best interests of the child.

I’ve written about the chaos in same-sex marriage law before. In November, after the 6th Circuit Court of Appeals upheld bans on same-sex marriages, I noted that the other circuit courts had come out the other way.

The 6th Circuit created a circuit split in our country. The U.S. Supreme Court is expected to issue a ruling within weeks about whether same-sex couples have a federal constitutional right to wed.

The Second District Court of Appeals opinion is here.

Same-Sex Marriage Update: The Supreme Court Takes Over

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Monday, January 19, 2015.

It’s on! Friday, the U.S. Supreme Court decided to hear DeBoer v. Snyder – the only one of five U.S. Court of Appeals cases won by the anti-gay marriage side. Same-sex marriage and divorce law is in chaos. That is about to end.

In November, after the 6th Circuit Court of Appeals upheld the bans on same-sex marriages in DeBoer v. Snyder, I noted that the other circuit courts had come out the other way.

That created a circuit split in our country, a necessary element to invoke U.S. Supreme Court jurisdiction. I predicted we could have a U.S. Supreme Court decision this summer. Friday the high court said:


The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions:

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

The briefs of petitioners are to be filed on or before February 27, 2015, so the briefing schedule indicates that the Court will hear oral argument and decide the cases by the end of June – this Term.

The decision to grant certiorari will finally end the uncertainty of status, and the interstate chaos, that the current differences in state laws created.

With Florida’s inability to extend the stay banning same-sex marriages, and a combination of other judicial decisions and legislative changes in other states, there are now 36 states that recognize same-sex marriage.

But, we will have to wait until this summer to see which of the various Constitutional arguments the justices agree on.

The U.S. Supreme Court Order is here.

Florida Same-Sex Marriage Update

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Tuesday, January 6, 2015.

Yesterday, Florida became the 36th state to allow same-sex marriages . . . sort of. Judge Sarah Zabel authorized the Dade County Clerk to start issuing marriage licenses forthwith to same gender couples.

I’ve written about the same-sex marriage and divorce legal changes in Florida often. Harvey Ruvin, the Dade County Clerk, asked Judge Zabel to clarify and expedite the earlier order delaying marriages.

Lawyers for same-sex couples had also asked the judge to let marriage licensing begin. The state offered no resistance. Judge Zabel then personally performed some of the first weddings at the courthouse.

Elsewhere, a judge in Key West ruled that licenses could be issued in Monroe County after midnight Monday. Judge Luis M. Garcia lifted an earlier postponement order, as of midnight Monday – the point at which a similar order by U.S. District Judge Robert Hinkle was due to expire.

Judge Garcia noted that both the U.S. Supreme Court and the 11th Circuit previously turned down requests by state officials to keep same-sex marriage licensing on hold pending appeal.

The law of the land in Florida is that the ban on same-sex marriage is unconstitutional and cannot be enforced further.

Without the prospect of any further pleas to higher courts for delay, the issue appeared to be settled – at least in terms of marriage licensing and actual marriage ceremonies – in Florida.

Licenses are expected to be issued by other clerks across the state this morning, under an order by a federal trial judge.

Same-sex marriages already are legal in California and New York. But Florida is the first state that will allow same-sex marriages even though there is no state-wide binding ruling by either a federal or state court.

There is still a pending appeal filed by the State of Florida with the U.S. 11th Circuit Court of Appeals, and they are still considering the appeal filed in a pair of federal cases. The briefing has been completed, but no hearing date has been set.

The Florida Attorney General, who first tried to delay licensing for same-sex prospective spouses, announced she would no longer prevent Florida’s county clerks from issuing the licenses.

The U.S. Supreme Court is scheduled to consider five new cases at its private conference this week. But as Scotusblog reports, it is not yet clear whether the Court will announce any actions on Friday on cases considered at that Conference, or will instead wait until the following Monday, when it returns to public sittings following a winter recess.

More can be read here.

Florida Same-Sex Marriage Update

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Monday, December 22, 2014.

Florida may recognize same-sex marriages and divorce beginning on January 6th. That’s because the U.S. Supreme Court refused to delay a lower court’s finding that Florida’s ban on same-sex marriages is unconstitutional.

The Supreme Court rejected the Florida Attorney General’s request to keep a district court judge’s stay order, which would have continued to stop same-sex couples from marrying. By denying the request, the Supreme Court cleared the way for gay marriages to begin.

The Supreme Court issued its order last Friday, in a short statement:

The application for stay presented to Justice Thomas and by him referred to the Court is denied. “Justice Scalia and Justice Thomas would grant the application for stay.

The stay order began in a ruling by U.S. District Judge Robert L. Hinkle, which I blogged about in August. Judge Hinkle ruled that Florida’s 2008 ban on same sex marriages is unconstitutional.

But as in many similar cases, Judge Hinkle stayed his own ruling to give the Attorney General time to appeal. That stay order is set to expire at midnight on January 5th.

Florida asked for longer stay in the 11th Circuit Court of Appeals, the federal appeals court which covers Florida, Georgia, and Alabama. But a three-judge panel declined to prolong the stay.

Neither the 11th Circuit nor the Supreme Court has ruled on the merits, and the Attorney General has expressed “confusion” over whether all 67 counties will issue marriage licenses to same-sex couples before appeals are settled.

The American Civil Liberties Union of Florida said it expects the state to fully recognize same-sex marriages once the stay order expires.

If the stay order expires, Florida would become the 36th state to recognize same-sex marriages. However, Florida filed an appeal with the 11th Circuit. That court has yet to hear, or schedule a hearing on, arguments on the merits.

CNN covers the issue here.

Florida Same-Sex Marriage Update – We Have a Split!

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Friday, November 7, 2014.

The federal 6th Circuit upheld bans on same-sex marriages in four states. Other circuit courts have come out the other way. We now have a circuit split. If petitions for certiorari are filed, we could have a U.S. Supreme Court decision this summer.

I blog about the same-sex marriage controversy a lot. Different states have different laws recognizing same-sex marriages, making the status of same-sex marriages in dispute. This creates interstate chaos. We need the Supreme Court to weigh in.

The Sixth Circuit Court of Appeals decision is important, because it creates a circuit split over the issue. A circuit split makes it much more likely that the Supreme Court will hear the case.

The Sixth Circuit opinion tried to show that laws banning same-sex marriage can meet “rational basis” scrutiny, the lowest level of constitutional review because gays and lesbians are not disenfranchised and are not a politically “powerless” minority.

A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States.

May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result?

In accepting these justifications for the four States’ marriage laws, we do not deny the foolish, sometimes offensive, inconsistencies that have haunted marital legislation from time to time.

States will hand some people a marriage license no matter how often they have divorced or remarried, apparently on the theory that practice makes perfect.

The traditional definition of marriage denies gay couples the opportunity to publicly solemnize, to say nothing of subsidize, their relationships under state law.

Do the benefits of standing by the traditional definition of marriage make up for these costs? The question demands an answer – but from elected legislators, not life-tenured judges.

What the opinion lacks in persuasiveness it more than makes up for in creating a circuit split that could prompt a grant of certiorari by the Supreme Court and end the uncertainty of status, and the interstate chaos that the current differences in state laws create.

The opinion in DeBoer v. Snyder can be read here.

Supreme Court Denies 7 Same-Sex Marriage Appeals

On behalf of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Tuesday, October 7, 2014.

Yesterday, the U.S. Supreme Court refused to review seven cases invalidating anti-same-sex marriage divorce. There is now a high probability the Supreme Court will invalidate these laws.

Given the pace in which same-sex marriage laws have been changing, I’ve been writing about this often. According to some, all seven cases involved lower courts which struck down state laws, so there was no circuit split, meaning no reason to take on the case.

Around 30-states have legal same-sex marriages, many same-sex couples in those states will have gotten married in the meantime. That will make it harder for the Supreme Court to declare of thousands of new marriages null.

Also, public support for same-sex marriage is growing steadily. A Supreme Court decision, when it occurs, will occur in a country that is more favorable to same-sex marriage than it is ow. This could affect swing votes like Justice Anthony Kennedy, who might be willing to hold that the Constitution guarantees a right to same-sex marriage, but may still be conflicted.

If justices Ruth Bader Ginsburg and Stephen Breyer were replaced with conservative justices, that might create an anti-gay marriage majority on the Court, but Ginsburg and Breyer might stay on long enough to decide the gay marriage issue.

We may get a Supreme Court decision striking down laws banning same-sex marriage in the next few years. That is because laws banning gay marriage discriminate on the basis of sex, they violate the fundamental right to marriage, and have been found to fail even the lowest level of judicial scrutiny, rational basis.

In addition to the growing number of victories in the circuit and district courts, and in state courts around the country, we are growing more confident that anti-same sex marriage laws are headed for the dust bin of history. When we don’t know.

More can be read at The Volokh Conspiracy here.

Same Sex Marriage Ban Upheld

On behalf of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Wednesday, September 10, 2014.

Favorable decisions in most courts over same sex divorce and marriage laws made you think all courts ruled the same way. A federal court in Louisiana shows that’s not true.

This lawsuit challenged the constitutionality of Louisiana’s ban on same-sex marriage and its refusal to recognize same-sex marriages permitted in other states and follows other cases I’ve written about.

Jonathan Robicheaux married his same-sex partner in Iowa, but lives in Orleans Parish, Louisiana; he alleged that Louisiana’s defense of marriage amendment to the state constitution violated his federal constitutional rights.

As the New York Times reports, Judge Martin Feldman, of the U.S. District Court for the Easter District of Louisiana in New Orleans wrote the order that the regulation of marriage was left up to the states and the democratic process; that no fundamental right was being violated by the ban; and that Louisiana had a “legitimate interest … whether obsolete in the opinion of some, or not, in the opinion of others … in linking children to an intact family formed by their two biological parents.”

Judge Feldman’s ruling was the first to uphold a state ban on same-sex marriages since the U.S. Supreme Court struck down part of the federal Defense of Marriage Act last year in the Windsor case.

Gay-marriage supporters had won more than 20 consecutive rulings overturning bans in other states. They said they would take the Louisiana case to the New Orleans-based 5th U.S. Circuit Court of Appeals, which already has before it an appeal by the state of Texas of another federal judge’s ruling that struck down that state’s gay marriage ban.

While the Windsor decision found that the federal same-sex marriage ban was discriminatory, it left a tension between the constitutional rights of same-sex couples and the authority of states to regulate marriage.

Same-sex marriage is currently allowed in 19 states and the District of Columbia, as a result of court decisions, legislative action or referendums. In some other states, courts have struck down bans, but those decisions have been stayed pending appeal.

An appeal to the United States Court of Appeals for the Fifth is assured. The Fifth Circuit is a federal court with appellate jurisdiction over the district courts in Louisiana, Mississippi, and Texas. Florida used to be in the Fifth Circuit, But, in 1981 Florida was moved into the newly created Eleventh Circuit.

The New York Times article is here.

Florida Same-Sex Marriage Update

On behalf of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Friday, August 22, 2014.

Big news in Florida’s divorce marriage war. A federal judge in Florida ruled that the same-sex marriage ban was unconstitutional, and ordered Florida to issue a marriage license to a same-sex couple.

Specifically, the order:

Requires the Secretary of the Florida Dept. of Management Services and the Florida Surgeon General to not enforce Florida provisions on same-sex marriage;

Requires the Florida Surgeon General to issue a corrected death certificate showing a female plaintiff was legally married to another woman;

Ordered the Clerk of Court of Washington County to issue a marriage license to two men;

But then stayed enforcement of the order to take effect until 91 days after stays have been denied or lifted.

The court found that sexual orientation was not a suspect classification, but marriage was a fundamental right. The court applied a strict scrutiny test, which requires a compelling state interest, and found Florida’s law could not justify itself.

When observers look back 50 years from now, the arguments supporting Florida’s ban on same-sex marriage, though just as sincerely held, will again seem an obvious pretext for discrimination. Observers who are not now of age will wonder just how those views could have been held.

-U.S District Judge Robert L. Hinkle

The judge stayed most of the effects of his ruling pending appeal. This means that nothing has changed as of yet. We are in a legal limbo in Florida. The judge added:

The institution of marriage survived when bans on interracial marriage were struck down, and the institution will survive when bans on same-sex marriage are struck down.

The case involved individuals who sued Florida to recognize their marriages or grant them marriage licenses Defendants include Gov. Rick Scott and Attorney General Pam Bondi. A spokespman for the Governor said:

The Governor respects the many views Floridians have on this issue. He believes in traditional marriage, consistent with the constitutional amendment passed by voters in 2008.

This is the first federal decision in Florida. When the stay is lifted, it will have statewide impact, and more families will be protected under Florida law. They may apply and receive health insurance, pension benefits and other state rights now limited to different sex partners.

Judge Hinkle’s order is available here.