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New York Judge Waives Residency Requirement for Divorcing Polish Gay Couple

Posted on: November 2nd, 2017 by Art Leonard No Comments

New York’s Domestic Relations Law, Section 230, sets residency requirements for married couples seeking to divorce in the state, which vary in length – one or two years — depending upon whether they were married in New York and have lived in the state continuously. This creates a problem for out-of-state same-sex couples who come to New York to marry and then return to a home jurisdiction that does not recognize same-sex marriages.  The problem is compounded, of course, if they want to divorce without at least one of them establishing residency in New York.  This is the problem faced by Andrej Gruszczynski and Wiktor Jerzy Twarkowski, Polish citizens who were married in the New York City Clerk’s Manhattan Marriage Bureau on December 6, 2013, having traveled to New York specifically to get married, and then returned to their home in Warsaw.  After a few years of marriage, they “mutually decided that they did not want to remain married to one another,” writes Justice Matthew F. Cooper in Gruszczynski v. Twarowski, 2017 N.Y. Slip Op. 27348, 2017 WL 4848485 (N.Y. Supreme Ct., N.Y. Co., Oct. 26, 2017), “but because Poland does not recognize same-sex marriage in any form, the parties could not turn to their local courts to obtain a divorce.”

They sought legal advice, and were counseled to file for divorce in New York. Gruszczynski’s attempt to do so by filing the papers in New York County’s “uncontested matrimonial calendar” in September 2016 was rejected by the Matrimonial Clerk.  The complaint for divorce alleges that there are no children, no assets to divide, no requests by either spouse for spousal maintenance, and no contest by the parties, who are mutually agreed that they should divorce.  All they desired was that a judge sign an order dissolving the marriage, with the only ground cited for divorce being “irretrievable breakdown of the relationship” by their mutual agreement to end it.  But the Clerk found that as both spouses reside in Poland, the statutory residential requirement of one year applicable to their situation acts as a bar, and the Clerk refused to accept the filing.

Their lawyer, Livius Ilasz, then filed a motion with Justice Cooper, seeking an order permitting an uncontested divorce despite the lack of residence. In affidavits accompanying the motion, both parties described how they traveled to New York City “specifically to avail themselves of this state’s right to marry, a right not afforded to them by their own country,” Cooper explained.  The men described “their need to avail themselves of New York’s no-fault divorce law so that they can dissolve a marriage that neither party wishes to continue,” wrote Cooper, and they “stress that if New York refuses to entertain the proceeding, they will face the prospect of being unable to find any forum in which they can be divorced.”  They called on the equitable powers of the court to waive the residency requirement and allow them to dissolve their marriage.

The case harkens back to the “wed-lock” phenomenon experienced by U.S. same-sex couples prior to June 26, 2015, when same-sex marriage (and, correlatively, divorce) became available in every state by judicial fiat from the Supreme Court. Reports surfaced in the media of occasional judges in non-equality states who were willing to bend the rules to help out local residents who had married out of state and needed to get a dissolution of a civil union, domestic partnership, or even a marriage.  But published decisions on the issue are scarce, so Justice Cooper’s effort may fill an important legal gap now for foreign nationals who come to the U.S. to marry and then return home.

“There are good reasons to allow this uncontested divorce action to proceed irrespective of the parties’ inability to meet the one-year residency requirement,” he wrote. He found that the plaintiff had made a “compelling argument that, under the circumstances presented here, a strict application of DRL Sec. 230 is inequitable and discriminatory.”  In an introductory portion of the opinion, the judge set out some background history, including how New York City had embarked on a promotional campaign after marriage equality became available in the state to lure out-of-staters to New York to get married, generating substantial additional business for the city’s hotel, restaurant, tourism and retail businesses.  Justice Cooper quotes a figure of a quarter of a billion dollars in extra business revenues during the first 12 months of the marriage equality era in New York, attributed to a statement issued in July 2012 by Mayor Michael Bloomberg.  Thus, New York was explicitly inviting people, such as the parties in this case, to come to New York to get married.

“Having accepted New York’s invitation to come and exercise their right to marry as a same-sex couple, the parties now find that they are being deprived of the equally fundamental right to end the marriage. Thus, they face the unhappy prospect of forever being stuck in their made-in-New York marriage, unable to dissolve it here or in their home country. Clearly, equity demands that the parties be spared such an excruciating fate,” Cooper wrote, noting a parallel decision by the Albany-based Appellate Division, 3rd Department (Dickerson v. Thompson, 88 App. Div. 3d 121 (2011)), authorizing a New York trial court to dissolve a Vermont Civil Union so that one of the civilly united parties would not have to move to Vermont to establish residency in order to terminate the relationship there.

Cooper explained the policy concerns that led New York to establish residency requirements for divorce. At a time when New York had liberalized its divorce law, there was fear that out-of-staters seeking to escape more demanding requirements in their home states (such as proving adultery by one partner, for example, for a fault-based divorce) would flock to New York to divorce, inundating the courts with the matrimonial contests of citizens of other states.  However, since those days divorce laws throughout the country have been dramatically altered to allow no-fault divorce everywhere – including, among the last to join the trend, recently in New York – so that the incentives to come to New York specifically to divorce – at least from elsewhere in the United States – have disappeared.  Given the current situation, wrote Cooper, “It is difficult to see how permitting plaintiff and defendant to pursue their uncontested divorce here would somehow open the floodgates to our courts.”  He pointed out that in the absence of any interest by Poland in adjudicating matrimonial issues for same-sex couples, New York is actually the jurisdiction having the most substantial interest in this marital relationship, which, after all, New York created.

“Basic fairness and social justice, along with the lack of any adverse impact on this state and its court system, all appear to be sufficient reasons to allow plaintiff to maintain this action for an uncontested divorce,” Cooper wrote. He also noted that some prior New York rulings had held that the residency provisions of Sec. 230 were not “a jurisdictional requisite” and, as the defendant was not objecting to the jurisdiction of the court based on the lack of residency of either party, the “defense” of lack of jurisdiction was effectively waived.

Granting the plaintiff’s motion, the court directed him to resubmit the uncontested divorce papers to the Matrimonial Clerk within 30 days, and the Clerk was directed to accept and forward the papers, “including the proposed judgment of divorce,” back to the judge’s chambers “for review and signature.” Nobody is going to appeal this ruling, so there will not be an appellate ruling that could create a binding precedent on trial courts, but Justice Cooper obviously took pains to write an opinion that would be a very persuasive precedent for future reference.

The Bitter-Enders in the World of Marriage Equality

Posted on: November 10th, 2015 by Art Leonard No Comments

When the Supreme Court says it’s done, then it’s done, right?  Well, not necessarily in Mississippi, where resistance to the impact and consequences of marriage equality lingers.  In recent days, the Mississippi Supreme Court has weighed in — sort of — on gay divorce, and a trial judge in Hinds County heard arguments about the state’s continuing ban on “same-sex” adoption.

The divorce case, Czekala v. State, No. 2014-CA-00008-SCT (Nov. 5, 2015), involves a lesbian couple who went to California during the freedom summer of 2008 and got married, then returned to continue living in Mississippi.  Lauren Beth Czekala-Chatham and Dana Ann Melancon separated on July 30, 2010 and Lauren filed a divorce action in the Chancery Court of Desoto County on September 11, 2013.  Why the wait?  This writer speculates that Lauren did not feel any urgency about filing for divorce so long as neither Mississippi nor the federal government recognized the marriage, but on June 26, 2013, the U.S. Supreme Court struck down the Defense of Marriage Act in the Windsor case and suddenly there were consequences under federal law if the marriage was not legally ended.

The problem was that Mississippi did not recognize the marriage.  For whatever reason of her own, Dana Ann decided to oppose the divorce, filing a motion to dismiss the case on the ground that her marriage was “null and void” in Mississippi.  Lauren responded with a motion to declare the state’s ban on recognizing the marriage unconstitutional.  This woke up the state, which moved to intervene to defend its marriage ban.  The chancery court judge upheld the marriage ban and dismissed the divorce petition.  Lauren appealed to the Mississippi Supreme Court, which heard oral argument on January 21, 2015, less then two weeks after the U.S. Supreme Court agreed to review the Obergefell v. Hodges case on marriage equality.

After the U.S. Supreme Court ruled on June 26 of this year, Lauren moved for an entry of judgment based on Obergefell.  If states cannot refuse to let same-sex couples marry or to recognize their marriages, she argued, then there was no reason for Mississippi to refuse to consider her divorce petition.  The attorney general agreed that under Obergefell the court should grant Lauren’s motion and send the case back to the chancery court.  This was enough for five members (a majority) of the court, which found that “no contested issues remain for resolution” and granted Lauren’s motion without further explanation.  This set off squabbling on the court, with four judges writing or agreeing with various objecting decisions and one judge writing a separate concurring statement joined by another.

The main points of contention were whether it was irresponsible of the court not to issue a full ruling on the merits, and further, at least on the part of two judges, whether the majority of the court had violated their oaths of office by following an “illegitimate” U.S. Supreme Court decision, which in turn drew responses from other judges on their duty to follow U.S. Supreme Court constitutional rulings.

Seizing upon irresponsible and intemperate statements by the four dissenting Supreme Court justices in Obergefell, Justices Jess H. Dickinson and Josiah D. Coleman insisted that Obergefell is an illegitimate ruling that should not be followed by the courts of Mississippi.  This extreme view is fanned by dozens of academics who have lent their names to a website instigated by Professor Robert P. George of Princeton University, an obsessive homophobe, under the title “Statement Calling for Constitutional Resistance to Obergefell v. Hodges.”  Using selective quotations from the four Obergefell dissents and out-of-context quotations by other historical luminaries, Prof. George and the dissenting Mississippi justices take seriously Chief Justice John Roberts’ parting shot in his dissent — that the decision has “nothing to do with the Constitution.”  If that is so, wrote Justices Dickinson and Coleman, then it would violate their oaths of office to comply with that ruling.  Dickinson included in his dissent the list of the signers on Prof. George’s website to support the argument that Obergefell is an “illegitimate” decision.

Even on the very conservative Mississippi Supreme Court this assertion drew only two votes.  Others objecting to the majority’s handling of the case would have preferred that the court issue a full ruling on the merits discussing the Obergefell case and explaining why its federal constitutional mandate would extend to striking down Mississippi’s marriage and recognition bans.  Indeed, one of the objecting judges included in his opinion the full text of what he would prefer the court to have issued as an opinion on the merits.  These judges argued that it was important for the state’s high court to explain for the benefit of the lower courts and the public about the current status of Mississippi law in light of Obergefell.

The lack of such affirmative guidance may be felt in the adoption litigation, where the state persists in arguing that it is not required to allow the same-sex spouse of a military service member to adopt their child who was born while the birth mother was living in Mississippi.  Attorney Roberta Kaplan, who represented Edith Windsor in the successful challenge to the Defense of Marriage Act, represents Donna Phillips and Jan Smith.  According to a news report about the case, Mississippi is the last state to have a statutory ban on same-sex couples adopting children, and the state is continuing to defend that ban in this case, even though it threw in the towel in the divorce case.

Phillips, the birth mother, happened to be stationed in Mississippi when she gave birth.  Now, as her spouse Jan Smith explained in an interview with WJTV on November 8, “We live our lives just like everyone else.  She was deployed. We struggled.  It was hurtful.  It was tough.  With that we just want the same protection that everyone has for their children.”  Said Phillips, “We want Jan’s name to be on our daughter’s birth certificate.  That’s all we are looking for, so she has equal rights to take care of her and to do what’s necessary for our daughter.”

Kaplan pointed out, “It’s very hard to say gay couples have the right to marry but they don’t have the right to adopt.”  But attorneys for the state insisted that the state’s ban remains constitutional, despite Obergefell, and urged the court to dismiss the case.  The judge reserved judgment at the end of the hearing, with no firm deadline for ruling on the case.

Divided Texas Supreme Court Evades Deciding Gay Divorce Issue

Posted on: June 23rd, 2015 by Art Leonard No Comments

With a ruling on same-sex marriage from the United States Supreme Court just days away, the Texas Supreme Court finally acted on June 19, 2015, on a pair of appeals argued nineteen months ago in November 2013, holding in State v. Naylor, 2015 Tex. LEXIS 581, that the state’s attorney general did not have standing to appeal an Austin trial judge’s order granting a judgment “intended to be a substitute for a valid and subsisting divorce” to a lesbian couple who had married in Massachusetts, and granting a motion to dismiss an appeal in In re Marriage of J.B. and H.B., in which the Texas Court of Appeals in Dallas had ruled in 2010 that Texas courts lack jurisdiction to rule on divorce petitions from same-sex couples married elsewhere.  The court’s opinion in the Naylor case by Justice Jeffrey V. Brown was joined by four other members of the court, one of whom also penned a concurring opinion.  One member filed a dissenting opinion for himself and three others, arguing against the ruling on standing.  One of the dissenters filed an additional dissenting opinion, arguing at length that the Texas ban on performing or recognizing same-sex marriages does not violate the 14th Amendment.  One member did not participate in the case.

The motion to dismiss the J.B. and H.B. appeal was actually filed by James Scheske, who represented the party seeking an uncontested divorce.  The two men married in Massachusetts in 2006 and moved to Texas in 2008.  Shortly after moving to Texas they ceased to live together, and J.B. filed a petition in Dallas County seeking a property division and that his last name be changed back to his original name as part of a divorce decree.  The state intervened and argued that the court had no jurisdiction to decide the case, but the trial judge, Tena Callahan, issued a ruling on October 1, 2009, holding that the Texas ban on same-sex marriage was unconstitutional and that she could decide the case.  The state appealed that ruling, and the Texas Court of Appeals in Dallas ruled on August 31, 2010, that Judge Callahan was wrong.  An appeal to the Texas Supreme Court followed, and the case was argued, after much delay, in November 2013.  But H.B. subsequently died, and Scheske filed an uncontested motion to dismiss the case, since his client’s marriage had been terminated by death so a divorce decree was no longer needed.  The court granted that motion on June 19 without explanation, but one of the judges noted in his concurring opinion in the Naylor case that the J.B. appeal was “moot” as a result of the death of one of the parties.

Angelique Naylor and Sabina Daly, Texas residents, went to Massachusetts to marry in 2004. Naylor filed a divorce petition in Travis County a few years later.  The women had a child and were operating a business together, so, as Justice Brown explained, “Naylor hoped to obtain a judgment addressing their respective rights, some of which they had already settled in a suit affecting the parent-child relationship.”  Although lawyers from the attorney general’s office were aware of the case and were actively monitoring its progress, they didn’t formally try to intervene until after the trial judge issued his bench ruling incorporating the parties’ settlement agreement into a judgment, which the judge explained “is intended to dispose of all economic issues and liabilities as between the parties whether they are divorced or not.”  The following day, the state petitioned to intervene “to oppose the Original Petition for Divorce and to defend the constitutionality of Texas and federal laws that limit divorce actions to persons of the opposite sex who are married to one another.”  The trial judge rejected this petition as too late, and the Court of Appeals in Austin agreed in 2011.  An appeal to the Texas Supreme Court followed, and it was consolidated with the J.B. appeal and argued on the same day in November 2013.

There was widespread speculation that the Texas Supreme Court, observing all the marriage equality litigation going on in Texas and elsewhere in the wake of the U.S. Supreme Court’s U.S. v. Windsor ruling, had decided not to rule on these appeals until the U.S. Supreme Court settled the constitutional questions around same-sex marriage one way or the other, so the Texas court’s June 19 actions caught many by surprise.  Writing for the majority of the court, Justice Brown agreed with the Court of Appeals that the state lacked standing to appeal the trial court’s judgment.  “Texas courts allow post-judgment intervention only upon careful consideration of any prejudice the prospective intervenor might suffer if intervention is denied, any prejudice the existing parties will suffer as a consequence of untimely intervention, and any other circumstances that may militate either for or against the determination,” he wrote.  In this case, by implication, those considerations weighed against ordering intervention.  Although Justice Brown left it unsaid, it seemed clear that the majority of the court saw little reason to litigate the underlying issue in this case when the U.S. Supreme Court was on the verge of ruling.  He devoted most of his opinion to a close analysis of Texas laws governing post-judgment intervention, and almost none to the underlying question whether same-sex couples can get divorces in Texas, merely stating general agreement with Judge Devine’s analysis described below.

In a concurring opinion, Justice Jeffrey S. Boyd explained further the underlying rationale for dismissing the appeal.  “I write separately to emphasize a point on which everyone agrees: the State of Texas is not bound by the divorce decree at issue in this case.”  He continued, “The State lacks standing to appeal because it was not a party, it shared no privity or interest with any party, and the trial court’s judgment is not binding on it. . .  As a non-party who is not bound by the judgment, the State has no obligation to give any effect to the trial court’s divorce decree.  In fact, it may be, as the State contends, that our laws prohibit the State and all of its agencies and political subdivisions from giving any effect to the decree.”  Since the state did not recognize the marriage in the first place, and had been taking the position all along in both cases that such out of state same-sex marriages are considered “void” in Texas, the decree was of no consequence to the state.  Judge Boyd’s opinion overlooks the plain fact that the trial judge had not even necessarily considered this to be a divorce decree, but rather a “judgment” incorporating a settlement agreement reached by the parties.   Judge Boyd did comment that the dismissal of the J.B. appeal as moot “leaves the Dallas court’s opinion as the only currently existing Texas law” on the issue whether same-sex couples married elsewhere can get a divorce in Texas, and that ruling, of course, was negative.

Justice Don R. Willett’s dissent argued strongly that the court should have allowed the State to intervene because of the importance of the question.  Justice John P. Devine’s dissent, quite lengthy, plunged into the constitutional merits and argued that the Texas ban on recognizing same-sex marriages from other jurisdictions did not violate the 14th Amendment.  In addition to relying on Section 2 of the Defense of Marriage Act, the provision that was left untouched by the U.S. Supreme Court in U.S. v. Windsor, which provides that states are not constitutionally required to recognize same-sex marriages from other states, he argued that Texas had good policy justifications for refusing to allow same-sex couples to marry and treating out-of-state same-sex marriages as void in Texas.

Ignorant comments by the governor and attorney general in response to the Naylor ruling led to misleading media reports suggesting that the Texas Supreme Court had “upheld” a same-sex divorce sought by Naylor, but clearly the court had done no such thing, merely holding that it was itself without jurisdiction to rule on the state’s argument that the trial court lacked jurisdiction.

Ultimately, these actions by the Texas Supreme Court will be of only passing interest after the U.S. Supreme Court’s ruling in Obergefell v. Hodges.

 

Florida Courts Can Grant Divorces to Married Same-Sex Couples

Posted on: April 27th, 2015 by Art Leonard No Comments

The Florida 2nd District Court of Appeal ruled on April 24 in Brandon-Thomas v. Brandon-Thomas, 2015 Fla. App. LEXIS 6051, 2015 WL 1874457, that a same-sex couple that married in Massachusetts but resides in Florida could seek a divorce in a Florida court.  The unanimous three-judge panel found that the state had no rational basis for treating such a marriage differently from other out-of-state marriages.  The ruling reverses a 2013 decision by Lee County Circuit Judge John E. Duryea, Jr., who dismissed the divorce petition filed by Danielle Brandon Thomas.

Danielle and Krista Brandon Thomas married in Massachusetts in 2012 and subsequently relocated to Florida.  They have a child, for whom Krista is the birth mother.  According to the Per Curiam opinion issued by the Court of Appeal, “the marriage soured” after they relocated to Florida and Danielle filed a divorce petition in October 2013.  In her petition, Danielle asked the court to “determine parental responsibility and child support issues, as well as equitable distribution.”

Why would Krista oppose the divorce petition?  In her motion to dismiss the petition, she “alleged that she was both the birth mother and genetic mother of the child and that Danielle therefore had no standing to request shared parental responsibility or child support.”   It seems that Krista hoped by defeating the divorce petition to avoid a court ruling that Danielle was entitled to exercise parental rights to the child, or a court ruling requiring a division of assets.

The trial court based its dismissal on Florida’s Defense of Marriage Act and a state constitutional amendment that forbids recognition of same-sex marriages.  At the time the trial court ruled, those provisions had yet to be declared unconstitutional.  But after the U.S. Supreme Court’s June 2013 decision striking down part of the federal Defense of Marriage Act, several lawsuits were filed by same-sex couples in Florida seeking both the right to marry and the right to recognition of out-of-state marriages.  Florida Attorney General Pam Bondi has energetically opposed these lawsuits and appealed adverse rulings.  However, on December 19, 2014, the U.S. Supreme Court rejected her petition to stay a federal trial court ruling finding the Florida laws unconstitutional under the 14th Amendment, and same-sex couples began marrying in Florida early on January 6, 2015.

Surprisingly, the Per Curiam opinion by the court doesn’t mention any of this marriage litigation and doesn’t purport to base its ruling on the federal decisions, although they are mentioned in a concurring opinion by Judge Edward C. LaRose.  Instead of issuing a ruling that, of course, Florida courts can decide divorce cases for married same-sex couples because same-sex marriage is now legal in Florida, the court ruled as if the status of those Florida laws relied upon by Krista has not changed.

Instead, the court based its decision on the Full Faith and Credit Clause of the U.S. Constitution, which provides: “Full Faith and Credit shall be given in each State to the public acts, Records, and judicial Proceedings of every other State.”   After noting that Florida courts have not treated “sexual orientation” as a “suspect classification,” the court said that “the right of a same-sex couple to seek a dissolution of marriage in Florida, when they were validly married in another state but now live in Florida, is not a fundamental right for federal constitutional purposes.  Thus, Florida bears the burden of presenting only a rational basis for its classification.”

The court found that neither Krista, in opposing the divorce petition, nor the state, which intervened to advance its view that Florida courts may not recognize out-of-state marriages, even for the purpose of dissolving them, had failed to present such a “rational basis” for the Florida laws forbidding recognition of same-sex marriages.

“Krista refers to ‘a societal inducement for opposite-sex couples to marry, thus decreasing the percentage of children accidentally conceived outside of a stable, long-term relationship,’” commented the court.  “But this argument seems to ignore the biological fact that same-sex couples do not contribute to the problem of children ‘accidentally conceived’ outside of a stable, long-term relationship because, as a matter of pure biology, same-sex couples simply cannot ‘accidentally conceive’ children.”  This comment seems ironic, since prior to the recent surge of marriage equality decisions, several courts, including New York’s highest, had relied on the biological impossibility of same-sex couples accidentally conceiving children as a justification for the state providing marriage for different-sex couples but not same-sex couples.  Now the tables are turned!

Attorney General Bondi argued that “Florida’s refusal to recognize same-sex marriage furthers Florida’s long-standing history of defining marriage as being between a man and a woman.”  The court pointed out that refusing to give divorces to married same-sex couples living in Florida “seemingly contravenes Florida’s public policy.”

“If the policy is to prevent, eliminate, discourage, or otherwise preclude same-sex marriage in Florida, permitting the courts to dissolve same-sex marriages that have been previously entered into in other states would arguably further that policy by reducing the number of same-sex married couples in Florida,” the court wrote, stating that the Attorney General had failed to identify a “public purpose” that is served by denying divorces to such couples.

The court was disturbed by the practical impact of the trial court’s order dismissing the case, which is to deprive Danielle and the child of a judicial forum for determining what custody and visitation and child-support arrangements should be.  “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,” the court concluded.

In his concurring opinion, Judge Darryl C. Casanueva emphasized an alternative theory for finding jurisdiction: a right of access to the courts to determine the legal rights and responsibilities of parties upon the break-up of a marriage.  Same-sex couples married out-of-state are similarly situated with different-sex couples married out of state and equally in need of access to Florida courts to dissolve their marriages.  The judge pointed out that the U.S. Supreme Court had found a due process violation in the past when a state imposed significant fee barriers to couples seeking access to the courts for divorces, making them practically unavailable for poor people.  Thus, the right of access for a divorce is encompassed within the liberty protected by the Due Process Clause of the 14th Amendment.

Furthermore, he argued, this case wasn’t about same-sex marriage.  “A divorce proceeding does not involve recognition of a marriage as an ongoing relationship,” he wrote.  “Indeed, accepting that a valid marriage exists plays no role except as a condition precedent to granting a divorce.  After the condition is met, the laws regarding divorce apply.  Laws regarding marriage play no role.”

Judge Edward C. LaRose also concurred, emphasizing that the state’s statutory marriage recognition ban would have “minimal application to a case involving a divorce of a same-sex couple validly married in another state.”  While mentioning the federal marriage equality developments in Florida, Judge LaRose did not rely on them to reach his conclusion.  But in noting the practical impact of the trial court’s order, he pointed out that 37 states and the District of Columbia now have same-sex marriage.  “Although divorce does not inevitably follow marriage,” he wrote, “we should anticipate that many married same-sex couples, unfortunately, will need to dissolve their unions.  It is hard to fathom that the legislators who passed [Florida’s recognition ban] envisioned a scenario where assets remain unmarketable for lack of an equitable distribution.  Nor could they have reasonably anticipated a system that disregards the best interests of a child raised and nurtured in a same-sex home.  There can be no question but that Florida has a compelling interest in protecting children subject to its jurisdiction.”

Surprisingly, the court never mentioned the federal Defense of Marriage Act (DOMA) in its opinion.  Although the Supreme Court declared part of DOMA unconstitutional in 2013, it left untouched Section 2, which provides that states are not required to give “full faith and credit” to same-sex marriages contracted in other states.  Thus, in DOMA Congress gave Florida permission to withhold recognition from same-sex marriages such as that of Danielle and Krista.  Although many commentators have suggested that Section 2 of DOMA is unconstitutional, most of the litigation about marriage recognition over the past two years has virtually ignored it, as did the Florida court in this case.

The second question certified for review by the Supreme Court when it decides the pending marriage equality cases, Obergefell v. Kashich, was whether states are constitutionally required to recognize same-sex marriages from other states.   In Thomas v. Thomas, the Florida 2nd District Court of Appeal has answered this question in the affirmative.

Attorneys Luis E. Insignares and Brian J. Kruger of Fort Myers represent Danielle and Michael E. Chionopoulos of Fort Myers represents Krista.  The case will be returned to the Lee County Circuit Court for a hearing on Danielle’s divorce petition.