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August 15, 2014
Family Law Section to weigh in on same-sex divorce in Florida

By Gary Blankenship
Senior Editor

Can a lesbian couple married in another state get a divorce in Florida?

The Family Law Section has been given permission by the Bar Board of Governors to file an amicus brief in an appeal of 13th Circuit Judge Laurel Lee’s order, where she said she lacked authority under the Florida Constitution and state law to grant divorces to same-sex couples. The section is arguing another provision in the state constitution — as well as the 14th Amendment of the U.S. Constitution — does give the judge the authority to handle the matter.

Bar President Greg Coleman said the Bar is concerned with access to the courts, not the social issues surrounding same-sex marriage. He also emphasized that the Bar as a whole cannot address the issue, but it does fall within the purview of the section.

“This is not, will not, and cannot be a comment on the social issue of gay marriage,” he told the board. “This is purely a look at a legal issue that is within the province of the Family Law Section.”

A same-sex couple who gets married in another state and then moves to Florida, as Florida residents, must seek a divorce in Florida courts, he said. The only other option is to move to another state that recognizes same-sex marriage and establish residency there, which may not be an option for many.

“If they don’t have access to our Florida courts, being Florida residents for a number of years, they literally have no access to the courts,” Coleman said. “This, in my view, is a pure issue of access, something which our oath as Florida lawyers requires us to ensure for all citizens of the state of Florida.”

The Family Law Section will advocate using its own voluntary fees and must clearly distinguish itself from The Florida Bar when furthering its position.

The case, Shaw v. Shaw, 2d14-2384, is now pending in the Second District Court of Appeal. It involves two women who were married in Massachusetts in 2010 after that state legalized gay marriages. They filed for divorce in the 13th Circuit in January and went through a collaborative divorce process, which resulted in a voluntary settlement agreement in March.

In a May 9 ruling, Judge Lee said she was without authority to grant the divorce. The judge noted, in 2008, voters approved Fla. Const. art. 1, §27, defining marriage as between one man and one woman, and that “no other legal union that is treated as marriage or the substantial equivalent shall be valid or recognized.”

Judge Lee held that the Florida Legislature in 1997 passed the Defense of Marriage Act, F.S. §741.212, that specifically said marriages of same-sex couples authorized in other states or jurisdictions were not recognized for any purpose in Florida.

Consequently, Judge Lee concluded that in Florida the couple had no valid marriage, and “The court is without jurisdiction to dissolve that which does not exist under law.”

(A few days after the board’s vote, 17th Circuit Judge Dale Cohen reached the opposite conclusion in a similar case involving a couple seeking a divorce from a civil union they entered in Vermont in 2002. He overturned the marriage ban and granted the divorce, although he stayed his ruling pending appeal.)

Judge Lee’s decision “led to the inescapable conclusion this is not a social issue...but instead a truly legal and procedural issue that must be addressed through Florida law,” said board member Dori Foster-Morales, who is the board’s liaison to the Family Law Section and also board certified in family law.

She noted dissolutions impact a vast array of rights affecting property, Social Security benefits, alimony, questions of responsibility for incurred debt, possible domestic violence, and visitation, custody, and support issues for any children of the couple.

“The law as it exists and is being enforced creates incredible uncertainty . . . really to the detriment of people who reside in the state of Florida, including the most vulnerable of our citizens, children,” Foster-Morales said. She noted heterosexual couples have frequently traveled to other locales to get married, “and Florida has always recognized marriage, regardless of jurisdiction.

“Where there is marriage, there is divorce,” she added. “Divorce requires legal action, and the place a person is required to seek a divorce is their place of legal residence.”

The Family Law Section, in its request to the board for permission to file an amicus brief, stated that the equal protection clause of the 14th Amendment and the Fla. Const. art. 1, §2, provide, “All natural persons, male and female alike, are equal before the law....” The section asserted those provisions take precedence over the state law and constitutional provisions cited by Judge Lee. The section also contends that the constitutional provisions and state law cited by Judge Lee deny access to the courts, because some citizens cannot turn to the Florida courts to dissolve their marriages.

Coleman noted that normally the Bar Executive Committee handles section amicus requests, but in this case he wanted the full board to review the matter, and he told the board that the Executive Committee had conceptually voted 11-0 to recommend the section be allowed to file the amicus brief.

In a series of voice votes, the board found that the issue was beyond the scope of permissible ideological activity of The Florida Bar, but within the interests of the Family Law Section. Additionally, it said there was no conflict with any existing Bar policy or position and waived the requirement that the board review the final amicus brief.

The board also found the issue was unlikely to create any deep and philosophical divisions among a significant segment of the Bar’s members.

The brief will be reviewed by Executive Director John F. Harkness, Jr., and General Counsel Paul Hill and further coordinated through the board’s Executive Committee.

[Revised: 11-22-2016]