Tag: Same Sex Divorce Florida

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.

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.

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.