Category: Same sex/GLBTA

Are Same-Sex Divorces in Florida Legal Now?

On behalf of Ronald H. Kauffman, P.A. posted in Same sex/GLBTA on Friday, September 5, 2014.

In Florida, same-sex marriages are not recognized. Last month a Broward judge granted a same-sex divorce, and the time to appeal passed without an appeal. This allows the judge to finalize the same-sex divorce. What’s going on?

As the Miami Herald reports:

Brassner and Lade entered into a civil union in Vermont. In 2010, according to Brassner, Lade cheated on her and disappeared. Brassner, who still doesn’t know where Lade is, has now partnered with someone else and would like to marry someday.

I’ve written on the problem we have in Florida with same-sex divorces before. Florida law forbids recognizing the Vermont civil union and therefore won’t permit a divorce. And Vermont won’t dissolve the union without a signed affidavit from the missing Lade.

On Aug. 4, Judge Cohen declared Florida’s gay marriage ban unconstitutional and that Brassner and Lade be divorced, but stayed his ruling until after the 30-day appeal period was over.

“This Court finds that Florida’s ban on same-sex marriage violates the guarantees of due process and equal protection under the laws,” Cohen ruled. “Florida’s prohibition on same-sex marriage denies some citizens, based on their sexual orientation, the fundamental right to marry, and does so without a legitimate state purpose. This Court finds these laws are unconstitutional and GRANTS the Petitioner’s Motion For Declaratory Relief, declaring Florida’s ban on same-sex marriage unconstitutional.”

Now we know the state isn’t appealing. A hearing in the case, before Broward Circuit Judge Dale Cohen, is scheduled for the divorce to become final.

Although Attorney General Pam Bondi’s office offered a comment why the attorney general did not appeal the Brassner and Simpson decisions: “We were not parties to those cases,” Bondi spokeswoman Jennifer Meale said

The Miami Herald article is available here.

Transgender Divorce: Married Pregnant Man Can Divorce!

On behalf of Ronald H. Kauffman, P.A. posted in Same sex/GLBTA on Thursday, August 14, 2014.

One thing about matrimonial lawyer work, it never gets boring. A landmark case yesterday is the first to recognize a transgender person’s right to divorce. It also happens to be the first married, pregnant man’s divorce.

I’ve written about Tom’s case before. He was born a woman named Tracy. She was cute too, and participated in beauty pageants and worked as a model. The first of her surgeries were performed in 2002, and later, Tracy became Tom!

After a court hearing in December 2012, the trial judge ruled that Arizona did not have jurisdiction over Tom’s case and that Tom’s marriage was invalid under Arizona law as a “same-sex marriage.”

But a three-judge panel of the Arizona Court of Appeals overturned that order, and ruled that Tom’s marriage in Hawaii in 2003 is considered valid in Arizona, and concluded it wasn’t a same-sex union.

The Arizona Court of Appeals held:

We find the Family Court has subject matter jurisdiction to proceed with Beatie’s petition for Dissolution of Marriage and, ultimately, to enter a Decree of Dissolution, and therefore reversed the Family Court’s dismissal of Beatie’s Dissolution petition.

The court focused on the fact that Tom complied with Hawaii’s “clear and unambiguous” statute regarding sex change operations, and obtained a valid Hawaii marriage license.

The court specifically stated “there is no apparent basis in law or fact for the proposition that in the event Thomas gave birth after having modified his gender designation, it would have abrogated his “maleness”, as reflected on the amended birth certificate”.

Tom made headlines in 2008 as the World’s First Married Pregnant Man after being legally recognized as a man in 2002. As a married transgender male, he then gave birth to his three children from 2008 to 2010 and now resides in Arizona.

Tom said, “I feel I have finally been recognized in Arizona as not just a man, but a human being.”

You can read more about the world’s first transgender, pregnant male divorce here.

Florida Gay Marriage/Divorce Update

On behalf of Ronald H. Kauffman, P.A. posted in Same sex/GLBTA on Wednesday, August 6, 2014.

A Broward County circuit court judge overturned Florida’s same-sex marriage ban this week, in order to allow a same-sex divorce.

Heather Brassner, who has lived in Florida for years, formed a civil union in Vermont in 2002. They split up, and Brassner lost touch with her partner. She now has a new same-sex partner, and needs to get the civil union dissolved in order to marry. As Channel 10 news reports:

Broward Circuit Judge Dale Cohen ruled that Florida must recognize Brassner’s Vermont civil union for purposes of dissolving it so that she can marry her girlfriend.

I’ve written about the string of federal decisions which have struck down bans against same-sex marriages, and Judge Cohen’s decision was the third state decision in Florida. The earlier decisions, however, solely ruled on whether a same-sex couple was entitled to marry in Florida.

Judge Cohen was the first to rule that an out-of-state civil union must be recognized by Florida so that the couple can divorce in Florida. The judge stayed his decision “pending the outcome of expected appeals on similar issues recently ruled on by courts in Monroe and Miami-Dade Counties”.

In 2008, Florida citizens voted to amend the Florida Constitution to say: “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.”

Just like those two prior rulings in Florida, Judge Cohen’s decision doesn’t mean marriage licenses will be issued right away. A stay is in place while the state appeals.

Same-Sex Marriages A Year after U.S. v. Windsor

On behalf of Ronald H. Kauffman, P.A. posted in Same sex/GLBTA on Monday, July 7, 2014.

Last Year, the Supreme Court struck the Defense of Marriage Act as an unconstitutional deprivation of equal liberty. Since then, court rulings have overturned many state laws, not Florida’s, that said marriage was only between a man and a woman. What else has happened?

I’ve written before that same-sex marriages are recognized by the federal government now. As the Washington Post reports, some basic rights are still complicated for same-sex couples. The Justice Department just released a report showing the following changes:

Social Security: Couples living in states that recognize their marriages are entitled to Social Security spousal benefits. But Social Security benefits need to be based on the law of the state the married couple lives in, preventing Floridians from taking advantage of spousal benefits.

Veteran benefits: The VA is required to base spousal benefits on the laws of the state the couple lives in. That means Floridians may be denied marriage-based veteran benefits, such as the ability to file for dependency claims and survivor pensions.

Taxes: The IRS lets same-sex couples file as married on their tax returns, some states require same-sex couples to file as single on their state tax returns

Family leave: The Labor Department proposed a rule last week that all employees should be eligible to care for a same-sex spouses regardless of their state.

Health care: About 2/3 of Fortune 500 companies offered health benefits to same-sex spouses, but had to pay taxes on those benefits because the marriage wasn’t recognized. Now, those companies can offer health benefits tax free.

Immigration: The Department of Homeland Security announced that same-sex marriages will be treated the same as opposite-sex marriages for isponsoring same-sex spouses and filing to get visas for fiancés.

A year after Windsor, change has happened piecemeal for same-sex couples. Yet, every day witnesses another court decision extending Windsor. Florida still lags behind.

The Washington Post story can be read here.

Same-Sex Marriage Ban Struck Down by 10th Circuit

On behalf of Ronald H. Kauffman, P.A. posted in Same sex/GLBTA on Thursday, June 26, 2014.

Another state’s same-sex divorce ban falls. This case is worth noticing. The US Court of Appeals for the Tenth Circuit is the first federal appellate court to strike down a state law banning same-sex after Windsor.

I’ve written many times before about all of the federal trial court cases around the country which have all been declaring state laws bans on same-sex marriages unconstitutional.

This latest case is the most important since the U.S. Supreme Court case in Windsor, because it is the first ruling by a federal appeals court.

Our commitment as Americans to the principles of liberty, due process of law, and equal protection of the laws is made live by our adherence to the Constitution of the United States of America. Historical challenges to these principles ultimately culminated in the adoption of the Fourteenth Amendment nearly one-and-a-half centuries ago. This Amendment extends the guarantees of due process and equal protection to every person in every State of the Union. Those very principles are at issue yet again in this marriage equality appeal.

There was also a strong dissent. The Judge dissenting would have held that a state ban on same-sex marriage does not violate the Constitution, saying there is not a consensus about either the implications of Windsor or the same-sex marriage issue more generally.

“We should resist the temptation to become philosopher-kings, imposing our views under the guise of constitutional interpretation of the Fourteenth Amendment.”

The majority ruled that the Utah law is unconstitutional because it restricts the “fundamental” right to marriage under the Fourteenth Amendment, which subjects it to tight “strict scrutiny.”

The three interests asserted by Utah – (1) “fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children”; (2) “children being raised by their biological mothers and fathers-or at least by a married mother and father-in a stable home”; and (3) “ensuring adequate reproduction” were held compelling, but the law was not “narrowly tailored to their advancement.”

The 10th Circuit’s opinion in Kitchen v. Herbert can be read here.

Florida Same Sex Marriage: More State Bans Fall

On behalf of Ronald H. Kauffman, P.A. posted in Same sex/GLBTA on Tuesday, May 27, 2014.

I’ve written about Florida same sex couples who marry legally, but can’t divorce here. Florida is one of a dwindling number of states outlawing same sex marriage. Last week, two other states’ bans fell.

U.S. District Court Judge John E. Jones III in Pennsylvania called the plaintiffs courageous for challenging the constitutionality of the state ban writing:

“We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.”

Activist judge? Obama appointee drunk with power? Think again. Judge Jones was recommended by ultra-conservative, former Republican Senator, Rick Santorum, and was appointed by George W. Bush.

Judge Jones was also the judge in the famous evolution case whose order barred the Dover Area School District from teaching Intelligent Design, calling it: “a mere re-labeling of creationism” in Kitzmiller v. Dover Area School District.

The ruling is effective immediately.

Same sex marriage bans have been falling around the country this year since the U.S. Supreme Court last year struck down part of the federal Defense of Marriage Act sometimes called DOMA.

Pennsylvania is now the 19th state to legalize gay marriage and 43 percent of Americans now live in a state with full marriage equality, according to the advocacy group Freedom to Marry.

Also this week, Oregon became the 18th state to recognize same-sex marriage on Monday. Couples began applying for marriage licenses immediately after a federal court invalidated its voter-approved same-sex marriage ban.

And finally this week, Utah ordered state officials to recognize more than 1,000 gay marriages which took place in Utah during the two-week period before the U.S. Supreme Court halted same-sex weddings with an emergency stay.

The Pennsylvania memorandum opinion can be read here.

Recognizing Legal Same Sex Marriages in Florida

On behalf of Ronald H. Kauffman, P.A. posted in Same sex/GLBTA on Wednesday, February 26, 2014.

I blogged earlier about same sex couples who legally marry outside Florida, but can’t divorce because same sex marriages aren’t recognized. A federal judge recently ruled that Kentucky must recognize out-of-state same-sex marriages. Is this a prelude to striking Florida’s same-sex marriage ban?

A federal judge in the Western District of Kentucky has struck down Kentucky’s ban on recognizing same-sex marriages performed in states where it is legal.

U.S. District Judge John G. Heyburn II ruled that Kentucky’s prohibition violates the U.S. Constitution’s guarantee of equal protection under the law by treating gays and lesbians differently in a way that demeans them.

The Judge ruled:

While religious beliefs are vital to the fabric of society, assigning a religious or traditional rationale for a law does not make it constitutional when that law discriminates against a class of people without other reasons.

The judge then struck down part of Kentucky’s marriage statute which says only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky.

Florida’s is similar, and generally provides:

Marriages between persons of the same sex entered into in any jurisdiction which are treated as marriages are not recognized for any purpose in this state.

Not everyone in Kentucky is happy. State Representative Stan Lee, who championed Kentucky’s marriage law said:

“My heart breaks for my country – a country that I believe the founding fathers established as a country under God. A ruling like this, diametrically opposed to God’s law, breaks my heart.”

Interestingly, Judge Heyburn is a Republican, and was nominated for the federal bench by President George H.W. Bush in 1992. One of the more interesting comments in the decision:

“The exclusion of same-sex couples on procreation grounds makes just as little sense as excluding post-menopausal couples or infertile couples on procreation grounds.”

You can read more about the case in the Courier-Journal.

Same Sex Divorce: The Future is Nearer

On behalf of Ronald H. Kauffman, P.A. posted in Same sex/GLBTA on Wednesday, October 9, 2013.

Florida prohibits same sex marriages and same sex divorce – even if the marriage was entered in a state in which such marriages are legal. What happens if you are a Floridian who married in a state where same sex marriages are legal, but now want to divorce?

As the New York Times reports, a taste of what a Florida same sex divorce will look like may be found in Mississippi of all places. A woman is asking a Mississippi court to dismiss a divorce petition filed by the wife she married in California. Her argument:

Mississippi can’t grant the divorce because it doesn’t recognize same-sex marriages.

The couple, Lauren Beth Czekala-Chatham and Dana Ann Melancon, went to California to marry in 2008 while living together in Mississippi. Czekala-Chatham still lives in Mississippi, but Melancon moved to Arkansas.

Czekala-Chatham filed for divorce in north Mississippi’s DeSoto County Chancery Court on September 11, 2013, and wants Mississippi to recognize her marriage so she can get a divorce there.

Melancon filed a motion to dismiss her divorce petition based on Mississippi law, which like Florida, prohibits same sex marriages:

Any marriage between persons of the same gender is prohibited and null and void from the beginning. Any marriage between persons of the same gender that is valid in another jurisdiction does not constitute a legal or valid marriage in Mississippi.

Even though the parties were legally married in California, the State of Mississippi lacks any legal basis to grant the Plaintiff a divorce because there is no marriage to dissolve under the laws of this state.

What can Czekala-Chatham do if she wants a divorce? One thing is she can file for divorce in California:

Same-sex married couples who got married in California but do not live in California and live in a state (or states) that will not dissolve a same-sex marriage, can file to end their same-sex marriage in California, regardless of these residency requirements.

However, the lack of residency may stop a California court from deciding property ownership, alimony and children’s issues.

The Texas Supreme Court recently said it will consider whether it has jurisdiction over same-sex divorce cases and scheduled oral arguments for Nov. 5. At least two same-sex couples have filed for divorce in the state, which does not permit gay marriage.

Floridians in same sex marriages, who have wondered what their options are in the event of divorce, should keep an eye out on what is happening right now in Mississippi and Texas. That could be our future.

Same Sex Divorce in Florida

On behalf of Ronald H. Kauffman, P.A. posted in Same sex/GLBTA on Monday, August 19, 2013.

Same sex couples can marry, but can they divorce? If so, how? These are interesting questions divorce attorneys are asking.

For Ft. Lauderdale resident Adam Cardinal, this is not an academic question, he’s stuck. He traveled to New Hampshire to get married, where same-sex marriages are legal. About 3 years later, the couple separated.

Gay marriage is legal in New Hampshire, but does not exist in Florida. Florida does not recognize gay marriages which are legal in other states.

He can’t travel back to New Hampshire either. New Hampshire, like Florida, has a residency requirement in the state before being able to file for divorce.

As the New York Times reports, it’s even worse:

Mr. Cardinal cannot remarry – to do so would make him a bigamist in states like Massachusetts or New York that recognize his previous nuptials. And although he and his husband did not combine their assets, the lack of an official document certifying the end of their marriage carries financial risks.

“I didn’t realize this could potentially be an issue, that we couldn’t divorce when we wanted to,” Mr. Cardinal said. “That was really upsetting.”

The DOMA decision by the U.S. Supreme Court, was a victory for gay couples, and may offer hope to people who are caught in legal divorce limbo.

Like newlyweds everywhere, same sex couples give little thought to divorcing.

“You think, ‘This is perfect, this is great, I never have to worry about anything,’ and it’s only in retrospect that you sit back and say, ‘I shouldn’t have done that,’ ” said a woman who lives in Florida but married in Connecticut. She insisted on anonymity because she did not want to jeopardize her chances of eventually obtaining a divorce.

Even if your state recognizes same-sex marriages, divorcing can be more complex than for heterosexual couples. Consider the scenario where a same sex couple has lived together for 20 years, but only got married last month.

Marital Property

In Florida, a marital asset is generally one acquired after marriage. During 20 years of living together and acquiring property, even if Florida recognized same sex divorces, would not likely be marital assets here.

Spousal Support

Suppose a couple held themselves out as married, and would have marriedhad it been legal. Is it fair to limit the length of the marriage for purposes of awarding alimony to a few months because the 20 years illegal marriage can’t be recognized?

Many questions need to be answered, and the law has not caught up to the changes in our society. We have legalized gay marriages, but have not given as much thought to same sex divorce.