Tag: Florida Same Sex Marriage Update

Same Sex, Common Law Marriages

Posted by Ron Kauffman on

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.

Same-Sex Marriage Update: The Supreme Court Takes Over

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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:

CERTIORARI GRANTED

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

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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.