Martindale-Hubbell
The National Advocates
The National Advocates
National Board of Trial Advocacy
The Florida Bar
Best Lawyers
Client Distinction Award
The National Advocates

Published on: | by

A circuit court judge in the Florida Keys recently ruled that the Florida Constitution’s ban on marriages between same-sex partners violates the US Constitution’s equal protection clause, the Miami Herald reported. The ruling, which the state has appealed, could have a wide-reaching impact for many Florida same-sex couples, beyond simply those seeking to marry.

In a ruling issued July 17, Plantation Key-based Judge Luis Garcia decided that, when the Monroe County Clerk’s denied a marriage license to Key West bartenders Aaron Huntsman and William Lee Jones, the state violated the mens’ rights under the Fourteenth Amendment. The fact that Florida’s same-sex marriage was the result of a ballot initiative approved by a majority of voters did not matter. According to the court’s decision, it “is our country’s proud history to protect the rights of the individual, the rights of the unpopular and rights of the powerless, even at the cost of offending the majority.”

The ruling applies only to couples seeking to marry in Monroe County. The state Attorney General’s office immediately filed a notice of appeal, which stayed enforcement of Judge Garcia’s ruling. This means that all potential same-sex marriages in the county remain on hold until the court of appeals resolves the state’s appeal, although Huntsman and Jones have asked Judge Garcia to lift the stay and allow the Monroe County Clerk to begin issuing licenses right away.
Continue reading ›

Published on: | by

Crafting parenting and time-sharing plans are challenging enough under ordinary circumstances. When the child whose custody must be resolved also has special needs, the decisions become even more difficult. However, when these cases go to court, the law imposes the same analysis as all other parenting plan and time-sharing matters. Namely, the court must decide based upon the best interest of the child. The law does not require the involvement of guardians ad litem or expert witnesses, as one recent Third District Court of Appeal ruling highlighted.

A Florida man and woman, both of whom were deaf, had a son who was also deaf. The mother and son lived in Broward County, and the mother enrolled the boy at a school in Pompano Beach with both deaf and non-impaired students. The father, who lived in St. John’s County, sought to modify the time-sharing plan so that the child could attend the Florida School for the Deaf and Blind, located in St. Augustine near the father’s home. The school offered education entirely in sign language and also allowed deaf students like the son to participate in extracurricular activities and athletics.

At the end of the first day of trial, the judge expressed that he “needed” to appoint a guardian ad litem. However, since the court could not find a guardian fluent in sign language, no appointment was made. Ultimately, the trial judge sided with the father, ordering that the father have the child during the school year, with the mother receiving custody during the summers, and the parents would alternate weekends with the boy.
Continue reading ›

Published on: | by

Few spouses, while happily married, stop to consider maintaining the proper legal segregation of assets they acquired separately before or during the marriage. This often leads to trouble when a spouse mixes his/her separate assets with marital property and, as a result, causes the law to view that asset as having become marital property as well. One recent decision from the 4th District Court of Appeal, ruling that a real estate interest a wife inherited had converted to marital property, demonstrates the problems a spouse can create when she fails to maintain the required separation.

Before the couple married, the woman and her two sisters inherited a house. While the couple was married, the wife bought out her sisters’ ownership interests in the house. The couple eventually renovated and sold the house. They paid for the renovations from money in a marital account. When they sold the house, they deposited the proceeds into a marital account. What was left over after capital gains taxes remained in that marital account for the next 10 years, where they used to money to make stock trades.

Some time later, the husband filed for divorce. The trial court ruled against the husband’s request to include the wife’s original one-third ownership interest as a marital asset for purposes of equitable distribution.
Continue reading ›

Published on: | by

A single outburst proved to be inadequate to support an order of protection granted to a woman by a Martin County court. Since the accused man had never harmed or threatened the woman before or after the single incident, and the woman was not afraid of the man, there was no evidence that she was in “imminent danger” of suffering harm, and the 4th District Court of Appeal ruled that a protective order was not warranted.

W.’s appearance in Circuit Court in Martin County represented the aftermath of the somewhat acrimonious end of her three-month relationship with T. In May 2013, while visiting a pool hall, W. allegedly made a statement that angered the man, and he insisted that they leave. Once inside his car, T. allegedly continued yelling and cursing at the woman and refused to stop the car so that she could get out. At the man’s house, W. allegedly grabbed her phone and dialed 911, but the man grabbed her arm and pulled the phone away. The woman allegedly left and went across the street, where the neighbors called police. No arrests were made.

A week later, the pair met so that each could return items that had been in the other’s residence. W. was unaccompanied, but T. did not threaten or physically harm the woman. The woman later sought an order of protection. She admitted that the man had no history of violence before or after the pool hall incident, and she did not express that she feared T., but testified that she had friends in law enforcement who told her to seek the order because it was “better to be safe than sorry.”
Continue reading ›

Published on: | by

A husband’s recent failed attempt to modify his alimony obligation serves as a cautionary tale for all divorcing spouses as they consider signing agreements regarding alimony. The husband sought modification because the wife had been cohabitating with a man for two years. The 4th District Court of Appeal ruled that this was not grounds for modification, however, since the couple’s alimony agreement listed remarriage, but not cohabitation, as a valid basis for modifying the husband’s obligation.

When Husband and Wife divorced in 2007 after 17 years of marriage, they reached a marital settlement agreement that included the terms of the husband’s alimony obligation to the wife. The couple agreed that the husband would pay the wife $2,000 per month until he turned 62. The only grounds for modifying that obligation were loss of income due to the failure of the husband’s business, loss of income due to a decline in the husband’s health, the wife’s remarriage, or the death of either spouse.

In 2012, the husband went to court asking the judge to modify or terminate his alimony obligation. The wife, the husband alleged, had been living with a man in a “supportive” relationship that involved sharing wealth and assets for at least two years. The wife asked the judge to throw out the case, arguing that her non-marital relationship did not trigger any of the modification grounds listed in the settlement agreement.
Continue reading ›

Published on: | by

A recent 4th District Court of Appeal ruling highlighted the complicated issues involved in calculating alimony in a case where the wife, who was previously a successful professional, retired early and did not intend to return to work after the divorce. The appeals court rejected a trial court ruling imputing no income to the wife, determining that, because the wife was qualified for certain jobs and that her continued unemployment was her own choice, the lower court should have imputed some income to the wife in determining the amount of alimony the wife should receive.

When this Florida couple married, he was an attorney for a utility company and she ran a public relations and marketing firm. The husband’s employer laid him off in 2000, but provided him with such a generous severance package that both he and his wife decided to retire early. The husband told the wife that, as a result of the severance payment, neither of them would ever have to work again. After a year of retirement, though, the husband started a consulting business from which he earned a sizable income. The wife remained retired.

When the couple divorced after 17 years of marriage, one of the central items in dispute was alimony and the wife’s earning capacity. An expert witness testified that, with a few short classes in computer software and social media, the wife could obtain a job making $40,000-$50,000 per year. The trial court, though, decided the wife was not qualified for most of the jobs identified by the expert witness, imputed no income to her, and ordered the husband to pay her $11,648 per month in permanent periodic alimony. The court also did not require the wife to return to work.
Continue reading ›

Published on: | by

A South American mother’s attempt to relocate from Brazil to Florida became more complicated after the Third District Court of Appeal determined that an international convention regarding child custody applied to her case and required her to return with her two daughters to Brazil so that Brazilian courts could sort out the family’s custody dispute. While the mother had sole physical custody of the daughters, the mother and father had a joint right to determine the country in which the children would reside.

After the couple married in Ecuador in 2001, they moved to Brazil, where they had two daughters. The couple eventually split, and a Brazilian court entered a custody and visitation order. The order gave the mother sole custody and the father certain visitation rights. In December 2012, the mother took the girls and relocated to Miami.

The father went back to the Brazilian courts to seek the return of his daughters. He also filed a request in a Miami trial court for the same relief. The Miami court denied the father’s petition, concluding that he had only a right of access to the children and lacked the “rights of custody” needed to force the children’s return.
Continue reading ›

Published on: | by

In a victory for gay and lesbian parents, the 5th District Court of Appeal reinstated a lesbian’s parental rights regarding the child she had helped raise with her now former partner. The court’s ruling stated that the child’s biological mother could not invoke the authority of the court system to approve the other woman’s adoption of her son and then use those same courts to take those parental rights away simply because the women’s relationship ended.

The case centered upon the son of two lesbian women, identified in court records only as “C.P.” and “G.P.”, who were in a committed relationship from 2005 to 2012. In 2007, C.P. conceived and gave birth to a son. G.P. was present at the boy’s birth and was designated as a parent on all of the child’s medical and school documents. G.P. took on an equal role to C.P. in parenting the child for the first four years of his life.

In January 2012, G.P. legally adopted the boy. The couple had filed their request as a “step-parent adoption.” The couple then obtained an amended birth certificate naming both women as the child’s parents.
Continue reading ›

Published on: | by

A recent ruling by the Third District Court of Appeal sided against a Native American mother in her attempt to invoke the jurisdiction of the Miccosukee Tribal Court to resolve a custody dispute regarding two children she shared with a man who was not Native American. The decision has substantial impact for South Florida and the Miccosukee Tribe, which is situated in the Everglades just to the west of Miami and Fort Lauderdale.

While the issue of custody of children who are part Native American has been prominently litigated recently, including the “Baby Veronica” case which went all the way to the US Supreme Court, the dispute between a mother who was a member of the Miccosukee Tribe, and a father who was not Native American, involved a different aspect of the law. This case did not involve resolving custody based upon the Indian Child Welfare Act of 1978, as was the case in the “Baby Veronica” matter, but rather the the Uniform Child Custody Jurisdiction and Enforcement Act.

The case began when a custody dispute cropped up between the parents and the mother filed for custody in the Miccosukee Tribal Court. The court held a hearing and awarded custody to the mother. The father then filed in the 11th Circuit Court in Miami. The mother sought to shut down the father’s case, arguing that the tribal court had resolved the matter and that, under the terms of the UCCJEA, the Florida court lacked jurisdiction to adjudicate the dispute.
Continue reading ›

Published on: | by

A Tampa lesbian couple who married in Massachusetts in 2010 encountered a roadblock recently in their ongoing effort to get divorced. A trial court judge ruled that, because Florida law does not recognize same-sex marriages as valid, Florida courts lack the authority to dissolve them, the Tampa Tribune reported. The couple’s attorneys announced their intent to appeal the ruling, where they will argue that the state’s same-sex marriage ban is unconstitutional.

The lesbian couple in this case married in Sunderland, Mass. in 2010. The next year, they moved to Tampa. Unfortunately for the couple, the relationship deteriorated and they separated last fall. One of the women called the court clerk’s office in Franklin County, Mass. to inquire about obtaining a divorce. The clerk there explained that the woman could only file for divorce in Massachusetts if she had lived there for at least a year. She then filed for uncontested divorce in January in Hillsborough County.

In March, the couple completed a marital settlement agreement regarding the division of their assets. The woman’s lawyers argued that, if the legislature had desired to strip courts of the authority to grant divorces in cases involving homosexual couples, it could have explicitly stated this intent in the 2008 Definition of Marriage amendment to the state constitution. By contrast, Georgia’s constitution expressly forbids courts from granting divorces or maintenance in cases involving same-sex couples. Florida’s amendment has no such language.
Continue reading ›