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The Gay Divorcee: Marriage Equality in Florida and the Nation

Family Law

In the summer of 2013, the U.S. Supreme Court decided United States v. Windsor, 570 U.S. 12 (2013). In so doing, the Court ushered in a new era concerning the contentious subject of marriage equality.1 W hile the landscape is still changing, seemingly on a daily basis, in all probability, the issue will be resolved this summer when the Court decides the constitutionality of state laws banning same-sex marriage. This article briefly looks at the international context, the Windsor holding, and the current status of same-sex marriage throughout the U.S. and specifically within Florida.

Context: The USA and the Rest of the World
International context is important not only to understand the historical movement in which same-sex legal issues are arising, but also because of the peripatetic nature of our citizens and of those of other countries. This is especially important in Florida due to the large numbers of foreign nationals living here. Many U.S. cases, including Windsor, are arising because persons were legally married elsewhere, including other countries, and then seek divorces or other remedies in jurisdictions that ban or otherwise do not recognize the marriages.

• Canada — Canada passed the Civil Marriage Act in 2005, legalizing same-sex marriages throughout the country.2 As more recently happened in the U.S.,3  numerous individual Canadian provinces had already approved same-sex marriages.4

• Latin America — Argentina (2010), Uruguay (2013), and Brazil (2014) have nationally legalized same-sex marriages. In Mexico, the approvals have come from local and regional governments, with same-sex marriages legal in the capital, and civil unions in some other areas. Nationally, legal same-sex marriages from other jurisdictions are recognized. Colombia and Ecuador have some protections not rising to the level of actual marriage equality.5

• Europe — Many European countries have legalized same-sex marriages, civil unions, or similar schemes.6 The former group includes Holland, Belgium, Norway, Sweden, Denmark, Portugal, Iceland, Spain, France, England, and Wales. The latter group includes Scotland, Ireland (though a referendum on actual marriage is pending), Finland, Germany, Luxembourg, Czech Republic, Hungary, Austria, and Slovenia. There is a rather sharp divide between Western Europe and the countries of the former Soviet bloc, however.7

• Africa, the Middle East, Asia, and the Pacific — The general rule in the remainder of the world is that same-sex couples do not have the right to marry.8 The exceptions tend to occur where European colonial power was strongest, and its cultural connections remain. Thus, South Africa is the only country on that continent allowing same-sex marriage. In April 2013, New Zealand changed from being a civil union country to allowing same-sex marriage. The preceding year, a same-sex marriage bill failed in Australia, but some protections exist there.

The Windsor Case
In late 2012, the Second Circuit Court of Appeals decided Windsor v. United States, 699 F.3d 169 (2d Cir. 2012).9 I n that case, the widow of a woman, whom she had married in Canada, sought a spousal tax deduction on her U.S. federal tax return. The deduction was denied based on the federal Defense of Marriage Act10 (DOMA), which, inter alia, defined marriage as between a man and woman, and which, thus, limited spousal benefits under more than 1,000 federal statutory provisions,11 so as to exclude benefits to same-sex spouses who were married in jurisdictions recognizing the legality of such marriages. Ms. Windsor lived in New York, a state that recognized her Canadian same-sex marriage. The Second Circuit held that DOMA violated the Equal Protection Clause of the Constitution.

In Windsor, the federal government did not defend the challenged legislation.12 However, a group of congressmen from the House of Representatives intervened on behalf of the government, which the Supreme Court held sufficient to satisfy the U.S. Constitution’s requirement of a “case or controversy.”13 The Supreme Court invalidated the portion of DOMA that purported to deny federal marriage benefits to same-sex couples, despite those couples having been validly married in jurisdictions permitting the marriage.14

In Windsor, the majority held that DOMA violated basic Fifth Amendment due process and equal protection principles applicable to the federal government,15 a nd that a “bare congressional desire to harm a politically unpopular group” cannot justify that group’s disparate treatment.16 While the majority cautioned that the decision did not necessarily mean states that had traditionally been given the right to define marriage (as opposed to the federal government) could not validly ban same-sex marriage,17 Justice Scalia wrote a scathing dissent warning that “no one should be fooled; it is just a matter of listening and waiting for the other shoe.”18

National Scene post- Windsor
Justice Scalia’s Windsor dissent proved prophetic. As soon as Windsor was decided, a floodgate of litigation was opened nationally, in both state and federal courts. While pre-Windsor caselaw gave a slight edge to marriage equality, after that decision, the caselaw overwhelmingly turned against the prohibition of same-sex marriage. In fact, in one of the greater jurisprudential ironies of recent years, many of the cases ruling state laws similar to DOMA unconstitutional cited to Scalia’s Windsor dissent, in interpreting the same approach as used in Windsor to be applicable to state same-sex marriage bans.

As of mid-January 2015, gay civil rights advocacy and litigation group Lambda Legal reported that there were 88 pending marriage equality lawsuits in the U.S.19 These were split roughly with almost two-thirds in the federal courts and the remaining 30 cases in state courts.20 Of the 58 federal cases, slightly over half (30) were on appeal.21 Of the 30 state court cases, Lambda Legal reported that slightly more than half (16) were on appeal, including five in their respective supreme courts.22

It would be impossible to recount, even in summary fashion, histories of all the same-sex marriage litigation still pending in early 2015. Suffice it to say that the overwhelming majority of the cases, particularly in federal court, in which decisions have been rendered, are in favor of marriage equality. A quick overview of the decisions of the various 11 federal circuits provides a good snapshot of the 37 states in which same-sex couples are currently being married.

• Northeastern U.S.: First, Second, and Third Circuit Courts of Appeals — The First, Second, and Third circuits of the federal court of appeals comprise the geographic northeast of the U.S. In these circuits, there is no appellate post- Windsor caselaw because there has been no need for any. In general, these states already recognized the enforceability of same-sex marriages and/or civil unions by the time Windsor was decided. The lone exception is the geographically and culturally distinct district court of Puerto Rico within the First Circuit, which has upheld that territory’s prohibition of same-sex marriage.23

• Eastern Mid-Atlantic Coast: Fourth Circuit Court of Appeals — The Fourth Circuit is further south down the Atlantic coast, comprised of Maryland and Delaware, the two Virginias, and the Carolinas. The controlling authority there is Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014),24 in which Virginia’s prohibition of recognizing same-sex marriage was held to violate the due process and equal protection clauses. Same-sex couples can marry in all the states in this circuit.

• The South: The Fifth Circuit Court of Appeals — The Fifth Circuit historically comprised the Old South, the southern tier of states from Texas eastward. However, due to population shifts increasing the number of cases there, in 1981, it was split along the Mississippi-Alabama line into two circuits, with the western half remaining as the Fifth Circuit, and the eastern half being renumbered as the new 11th Circuit.25 The Fifth Circuit has not ruled on same-sex marriage, though cases from each of the three states on marriage equality (the Louisiana state DOMA laws having been upheld, while Texas’ and Mississippi’s were struck down) are pending there.26 Despite the marriage equality wins in Texas and Mississippi, as of this writing, same-sex couples there cannot be married due to stays.

• The Mid-West: The Sixth, Seventh, and Eighth Circuit Courts of Appeals — The Sixth Circuit is the lone federal circuit having upheld state DOMA laws as of this writing.27 Thus, same-sex couples currently cannot be married in Michigan, Ohio, Kentucky, or Tennessee. This is the case that the U.S. Supreme Court accepted for review in mid-January 2015, and which will likely end up deciding the issue this summer.28

The Seventh Circuit consists of Illinois, Indiana, and Wisconsin. The controlling precedent there is Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014).29 Thus, same-sex couples can marry in these three Midwestern states.

The Eighth Circuit consists of a number of Midwestern states west of the Mississippi River: The Dakotas, Nebraska, Minnesota, Iowa, Missouri, and Arkansas. Like the Fifth and 11th circuits in the South, the Eighth Circuit has not yet ruled on marriage equality. As a result, this circuit is a bit of a patchwork as of this writing, although in most states same-sex couples cannot yet marry (despite some trial-court victories, which have been stayed). The exceptions here are Minnesota, where the right was passed legislatively, and Iowa, whose state supreme court overturned its DOMA laws several years before Windsor.30

• The Far West: The Ninth and 10th Circuit Courts of Appeals — The Ninth Circuit consists of the Far West, including Alaska and Hawaii. The applicable federal precedent there is Latta v. Otter, 771 F.3d 456 (9th Cir. 2014).31 As a result, same-sex couples can marry in Alaska, Hawaii, California, Oregon, Washington, Idaho, Montana, Nevada, and Arizona.

Neighboring the Ninth Circuit to the east is the 10th Circuit, consisting of Wyoming, Utah, Colorado, New Mexico, Kansas, and Oklahoma. These states have marriage equality as a result of two 10th Circuit decisions: Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014),32 and Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014).33

Having discussed the circuits from one to 10, this brings us to the other half of the Old South, the 11th Circuit (Alabama, Georgia, and Florida). Since the 11th Circuit contains Florida, the 11th Circuit is discussed with the other Florida cases.

Florida and 11th Circuit Cases post-Windsor
Currently, Florida’s statutory and constitutional provisions banning same-sex marriage and the recognition of such marriages from other jurisdictions (Florida’s DOMA laws), still remain “on the books,” though a number of trial courts have held them unconstitutional. As of this writing, there is no Florida appellate case that specifically rules on the constitutionality of Florida’s DOMA laws.

There are currently at least eight pending or decided Florida appellate cases involving same-sex marriage.34 They can be subdivided on two different axes along the federal-versus-state court demarcation. This brings us back to the 11th Circuit and why same-sex couples are now being married in Florida, despite the lack of a ruling of constitutional import from that court or from any of the Florida state appellate courts.

• 11th Circuit Court of Appeals Cases — Only one Florida case is pending in federal court, although it is actually two cases that have been consolidated because they posed the same ultimate issue. In Brenner v. Scott, 999 F. Supp. 2d 1278 (N.D. Fla. 2014),35 Florida’s Northern District Court of Appeal held in August 2014 that Florida must recognize other states’ valid same-sex marriages and allow same-sex Floridians to marry. Despite issuing a stay, the court ordered Florida immediately to issue a new death certificate to one of the plaintiffs, whose partner of almost 50 years passed away in 2014.36

The Brenner stay was not for a time certain, but instead was linked to the then-existing federal circuit court decisions, all of which had also supported marriage equality. The stay was granted “until stays have been lifted in Bostic, Bishop, and Kitchen, and for an additional 90 days to allow the defendants to seek a longer stay from this court or a stay from the 11th Circuit or Supreme Court.”37

On September 4, 2014, Florida Attorney General Pam Bondi and other governmental officers and entities named as defendants in Brenner, filed an appeal to the U.S. Court of Appeals for the 11th Circuit. In light of the October 2014 refusal of the Supreme Court to hear any marriage equality cases in the upcoming term, the plaintiffs subsequently moved to have the stay pending appeal lifted.

The stay was allowed to run its course, initially. But when it was set to expire on its own terms, Bondi asked the 11th Circuit to extend the stay, and the Atlanta court declined to extend the stay. As did the U.S. Supreme Court. As a result, on January 5, 2015, the stay expired, despite the pendency of the appeal. Although Bondi initially called into question the power of the Northern District to effect statewide change, after a clarification by the court, clerks throughout all Florida counties complied with its ruling. The appeal itself has more recently been put on hold, and the 11th Circuit has decided to avoid the issue altogether, staying any marriage equality appeals before the Atlanta court, until the U.S. Supreme Court rules in June 2015.

• Georgia and Alabama State Cases — A last footnote before looking at the Florida state court caselaw is found in the other 11th Circuit jurisdiction of Alabama and Georgia. Georgia has no appeals presently pending.

The Alabama scenario initially paralleled Florida’s, but then diverged. The federal trial court there declared the Alabama DOMA-like laws unconstitutional,38 and both the 11th Circuit and U.S. Supreme Court refused to stay that decision. Subsequently, Alabama’s Supreme Court Chief Justice Ray Moore39 unilaterally purported to order state court probate judges to violate the federal trial court decree in a letter issued literally on the eve of what should have been Alabama marriage equality. The result was a week’s worth of confusion and noncompliance, followed by more federal court orders requiring compliance, which was later achieved in most Alabama counties. In a bizarre mandamus proceeding brought not by the states’ probate judges nor by any same-sex couples, but by two anti-gay groups, however, Alabama’s Supreme Court expressly held that Alabama’s prohibition of same-sex marriage was constitutional, over one dissent,40 and ordered all of the state’s probate judges41 to refuse to issue marriage licenses.42

• Florida State Cases — The Florida state cases can be divided into “test” cases and “practical” cases.43 The test cases sometimes are brought by small groups of plaintiffs, often chosen for the representative and/or morally compelling nature of their claims, and often sue the state, by naming the governor or other state officials as defendants. In the test cases, the plaintiffs are frequently represented with the assistance of advocacy groups.44 contrast, in the practical cases, typically only one or two persons are plaintiffs, and the plaintiffs are more commonly represented by private counsel. Frequently, though not always, the defendants in the practical cases are not state officials, but other persons with whom the plaintiff has a legal dispute, such as in a divorce case or probate case.

• The Test Cases — Of the pending cases in Florida state courts, there are three test cases, all from south Florida: Monroe County (Key West): Huntsman v. Heavilin, 21 Fla. L. Weekly Supp. 916a (Fla. 16th Cir. 2014); Miami-Dade County: Pareto v. Ruvin, 21 Fla. L. Weekly Supp. 899a (Fla. 11th Cir. 2014); and Broward County: In re Marriage of Brassner, 21 Fla. L. Weekly Supp . 920a (Fla. 17th Cir. 2014). In Huntsman and Pareto, the plaintiffs sued to be issued marriage licenses, while in Brassner, a same-sex married couple brought a declaratory judgment action to have Florida’s DOMA laws declared unconstitutional, so that they might later file a divorce suit, and have their out-of-state marriage dissolved.

The plaintiffs in all the three test cases were successful at the trial level; in all three cases, the trial courts held Florida’s prohibition of allowing or recognizing same-sex marriages unconstitutional. Bondi has appealed the Huntsman and Pareto cases, which have been consolidated on appeal45 and, on October 13, 2014, has moved for the consolidated case to be passed-through to the Florida Supreme Court46 as a result of the U.S. Supreme Court’s decision not to review any of the federal circuit court marriage equality cases.

In Brassner, after a favorable ruling for the plaintiffs, it was discovered that Bondi had not been notified of the constitutional issue.47 Bondi moved to intervene; the judgment was vacated; and a do-over was declared.

• The Practical Cases — The practical cases, which generally receive much less publicity, have had more mixed results at the trial level. Only one initially resulted in favor of same-sex marriage: In In Re Estate of Bangor, Case No. 502014CP001857XXXXMB (15th Cir. Aug. 5, 2014), the Palm Beach County Circuit Court held that out-of-state, same-sex marriages must be recognized in Florida probate cases. Bondi appealed the ruling.

In another, Dousset v. Florida Atlantic University, Case No. 4D14-480 (Fla. 4th DCA 2014), a student applied to pay lesser in-state tuition based on his marriage to a Florida resident and was administratively denied by the school. That case is on appeal by the student to the Fourth District Court of Appeal, and Bondi was granted leave to intervene therein.

A same-sex divorce case taking a different tack is found in Oliver v. Stufflebeam, 2014 WL 7331241, No. 3D12-2159 (Fla. 3d DCA. 2014). In that case, instead of challenging the state DOMA law’s constitutionality, it was contended that the law only applied to marriages, not divorces. The Third District Court of Appeal rejected that argument. Some have described this ruling as upholding the constitutionality of Florida DOMA laws; however, it did not.

Another pending case, Shaw v. Shaw, 2014 WL 4212771, No. 2D14–2384 (Fla. 2d DCA 2014), is a same-sex divorce case that was dismissed and is on appeal to the Second District Court of Appeal. In Shaw, the Second District sought to have the Florida Supreme Court immediately review the issue, but the high court refused. Briefs are being filed, and the Family Law Section of The Florida Bar has voted in favor of filing an amicus brief in the case, arguing in favor of recognizing same-sex marriages.

The U.S. Supreme Court
On October 6, 2014, the U.S. Supreme Court denied the petitions for writs of certiorari in seven cases arising from challenges to decisions of the Fourth, Seventh, and 10th circuits that recognized a constitutional right to same-sex marriage. Thereafter, the Ninth Circuit also held such bans unconstitutional. There are pending appeals in two more federal circuits: The 11th and Fifth, although the 11th Circuit will not rule on its appeals. As previously stated, the Sixth Circuit case upholding state-sponsored discrimination is pending before the Supreme Court, and a ruling is expected in June.

Because the Supreme Court has refused to stay any of the pro-marriage equality federal circuit appellate decisions and the federal trial court decisions that brought marriage equality to Florida and Alabama, the general impression is that the court does not have the votes to stop marriage equality. Further, as a practical matter, a ruling upholding the Sixth Circuit’s holding favoring state DOMA laws would effectively “unmarry” thousands of couples and leave their lives (and perhaps the lives of many with whom they have been dealing) seriously disrupted. Others have noted that the numerical “tipping point” of the current 37 states allowing same-sex marriage is comparable to historical precedent when other important new Supreme Court marriage precedent has been decided, such as the overturning of anti-miscegenation laws.48

On the Horizon
In the event that same-sex marriage becomes a reality in Florida, many question the new relationship that would arise. Two of those questions include parentage concerns and cohabitation agreements.

The first question is, to what extent, if any, will a spouse be considered the parent of a child born to or by the other spouse during the marriage? Biological parents automatically have a duty to support their children. However, parental rights under Florida law are not based solely on biology. To the contrary, in a marital scenario, parental rights/duties instead are based on a combination of two concepts: One concept is effectively similar to parens patriae the state will protect the safety and best interests of all children. The second applicable concept is that of marriage as a contract : What is mine is yours, and yours mine. Including children. The man is presumed the legal father of any children born during an opposite-sex marriage, even if he is not the biological father.49  He does not have to legally adopt the child to have parental rights to and be legally responsible for the child. For a lesbian marriage, if one spouse bears a child during the marriage, would the same presumption apply, such that the other spouse has a presumption of maternity?

At present in a marriage with two fathers, neither can give birth to a child, as can occur in a lesbian marriage. However, if one man biologically fathers a child via a surrogate during a marriage with another man, would his husband be presumed to be the second legal father?

The second area of issues involves cohabitation agreements that the parties executed to control results in the event of a nonmarital breakup. The question arises of how they affect the parties’ legal rights should they subsequently marry. There is no way to predict their effect. An analogy may be the cy pres doctrine where the intent of the decedent in making a charitable gift is effectuated even if the named donee does not exist.50 I f a court were to focus on that sort of “functional equivalency” intent analysis, then such cohabitation agreements might remain enforceable because the couple perhaps wanted to enter into marriage, but was only precluded from having done so by the illegal and unconstitutional acts of the state in actively preventing the couple from marrying.

The flip side here is that each and every one of those same-sex couples could also have executed a new prenuptial agreement before they exercised their newfound right to marry. But if they do not do so, then there could be an argument that they abandoned their pre-existing contract, in a very similar way to that whereby couples in traditional marriages may (or could, prior to Florida’s adoption of the Uniform Premarital Agreement Act) abandon or repudiate their own premarital agreements via subsequent events.51

The examples are virtually limitless. What about a person legally married in one state who moved to a state like Florida, sought a divorce from her wife, only to be told by the Florida divorce court that she was single?52 D uring the pendency of her appeal, she needs to buy real property. Does the deed say the purchaser is “single” or “married?” We will just have to see.

1 The term “marriage equality” and the phrase “recognition of same-sex marriage” will be used interchangeably throughout this article.

2 Timeline, Same-Sex Rights in Canada, Canadian Broadcasting Company, Jan. 12, 2012, available at http://www.cbc.ca/news/canada/timeline-same-sex-rights-in-canada-1.1147516.

3 The U.S. is discussed below.

4 See note 2.

5 See J.L. Feder, Latin America’s Gay Marriage Revolution, Foreign Policy Magazine , Jan. 25, 2013, available at https://aftermarriageblog.wordpress.com/2013/01/25/latin-americas-gay-marriage-revolution ; Freedom to Marry, Inc., The Freedom to Marry Internationally
(Dec. 2014), http://www.freedomtomarry.org/landscape/entry/c/international.

6 See Freedom to Marry, Inc., The Freedom to Marry Internationally (Dec. 2014), http://www.freedomtomarry.org/landscape/entry/c/international.

7 See Michael Lipka, Eastern and Western Europe Divided Over Gay Marriage, Homosexuality, Pew Research Center (Dec. 12, 2013), available at http://www.pewresearch.org/fact-tank/2013/12/12/eastern-and-western-europe-divided-over-gay-marriage-homosexuality.

8 See note 6.

9 Windsor, 699 F.3d 169 (2nd Cir. 2012).

10 1 U.S.C. §7 (2012) (defining “marriage” as “a legal union between one man and one woman as husband and wife” and “spouse” as exclusively referring “to a person of the opposite sex who is a husband or a wife”); 28 U.S.C. §1736C.

11 Windsor, 699 F.3d at 2694.

12 Id. at 2684. This refusal was in line with President Obama’s statements during the pendency of the appellate process in favor of marriage equality.

13 Id. at 2686.

14 Id. at 2696.

15 Id.

16 Id. at 2694.

17 Id. at 2696.

18 Id. at 2710.

19 L ambda Legal, Pending Marriage Equality Cases (Jan. 16, 2015), http://www.lambdalegal.org/pending-marriage-equality-cases.

20 Id.

21 Id.

22 Id.

23 See Conde-Vidal v. Garcia-Padilla, 2014 WL 5361987, No. CIV. 14-1253 PG (D. P.R. Oct. 21, 2014).

24 Bostic, 760 F.3d 352 (4th Cir. 2014).

25 See Bonner v. Pritchard, 661 F.2d 1206 (11th Cir. 1981) (adopting as precedent the decisions of the “former Fifth” Circuit, until such time as new 11th Circuit precedent might diverge therefrom).

26 See De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014); Robicheaux v. Caldwell, 2 F. Supp. 3d 910 (E.D. La. 2014); Campaign for Southern Equality v. Bryant, 2014 WL 6680570, No. 3:14-CV-818-CWR-LRA (S.D. Mississippi, Northern Division Nov. 25, 2014).

27 See DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014).

28 See Bourke v. Beshear, 2015 WL 213651, No. 14-574 (Jan. 16, 2015), cert. granted, “[L]imited to the following questions: 1) Does the [14]th Amendment require a state to license marriage between two people of the same sex? 2) Does the [14]th 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?”).

29 Baskin, 766 F.3d 648 (7th Cir. 2014) (Illinois statute and amendment to Wisconsin Constitution banning same-sex marriage violated Equal Protection Clause).

30 See Varnum v. Brien, 763 NW.2d 862 (Iowa 2009).

31 Latta, 771 F.3d 456 (9th Cir. 2014) (striking Idaho and Nevada same-sex marriage prohibitions).

32 Bishop, 760 F.3d 1070 (10th Cir. 2014) (striking down Utah and Oklahoma same-sex marriage bans).
33 Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) (also striking Utah ban).

34 T o the best of the author’s knowledge.

35 Brenner v. Scott, 999 F. Supp. 2d 1278 (N.D. Fla. 2014) (consolidated with Grimsley and Albu v. Scott).

36 999 F. Supp. 2d at 1292-93.

37 Id. at 1292.

38 See Searcy v. Strange, Civil Action No. 14–0208–CG–N, 2015 WL 328728 (Jan. 23, 2015); Strawser v. Strange, Civil Action No. 14–0424–CG–C (Jan. 26, 2015).

39 Who was removed years back for refusing to abide by a federal decree to remove a statue of the Ten Commandments displayed in his court.

40 The dissent opined that the opinion was nothing more than an illegal advisory opinion.

41 Oddly, except for the one named in the federal court order.

42 See In re State, ex rel. Alabama Policy Institute, 2015 WL 892752 (Ala. Mar. 3, 2015).

43 There can be overlap between the two types of cases.

44 These may include groups like ACLU or Lambda Legal.

45 These have been consolidated on review, with stays pending appeal.

46 A remedy the plaintiffs had requested months prior.

47 Fla. R. Civ. P. 1.071 (2014).

48 B.A. Robertson, Marriage Prohibition and Criminalization on the Basis of Race, Part 1: Conflict Over Inter-Racial Marriage in the U.S. Anti-Miscegenation Laws. The Supreme Court Ruling of 1967 in Loving v. Virginia, Ontario Consultants on Religious Tolerance, http://www.religioustolerance.org/hom_mar14.htm.

49 Dep’t of HRS v. Privette, 617 So. 2d 305 (Fla. 1993).

50 SPCA Wildlife Care Center v. Abraham, 75 So. 3d 1271, 1274, n.2 (Fla. 4th DCA 2011).

51 Compare, e.g., Plant v. Plant, 320 So. 2d 455 (Fla. 3d DCA 1975) (husband’s failure to obtain life insurance policy on his life for benefit of his wife as required by antenuptial agreement constituted abandonment by him of the agreement); Gustafson v. Jensen, 515 So. 2d 1298 (Fla. 3d DCA 1987) (husband abandoned antenuptial agreement by tearing up copy he believed to be original).

52 As occurred in the Shaw case previously discussed.

Luis E. Insignares is a board certified marital and family lawyer and is a member of the executive council of the Family Law Section of The Florida Bar.

Brian J. Kruger practices with the firm of Luis E. Insignares, P.A., in marital and family law at both the trial and appellate levels in Ft. Myers and Naples.

This column is submitted on behalf of the Family Law Section, Norberto Sergio Katz, chair, and Sarah Kay, editor.

Family Law