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SAME-SEX MARRIAGE IN FLORIDA: IS THE FIGHT OVER, IS THIS A DONE DEAL?

It has become common knowledge that in Florida, a same-sex couple can apply and receive a marriage license.  However, obtaining a marriage license is a far cry from marriage equality.

What most people are failing acknowledge or maybe understand, is that the ban on same-sex marriage was struck down by a federal court, rather than a change in Florida's Statutes.  As of the writing of this post, the Supreme Court of the United States is preparing to hear arguments on several states' bans on same-sex marriage.  If the Court rules in favor of the bans, those states, like Florida, whose ban was overturned by a federal court, will revert back to the law as written in the state statute.  This means that Florida's ban on same-sex marriage may come back, though to many Supreme Court so-called "experts" it does appear that the Court will likely not uphold the state bans.

Nevertheless, even if Florida law does not revert back to a ban on same-sex marriage, there are many unexpected difficulties awaiting these newly married couples.  Here's an example. For a longtime, Florida law has required that when a child is born of a married couple, that the husband of the marriage is placed on the birth certificate, even when it is likely that he is not the biological father.  The reason for this is the long held belief that a child has a right to be considered "legitimate" which is more important than a genetic connection between parent and child.  The problem is that Florida Statutes Section 382.013(2)(a) (which is where the above stated legitimacy law is found) specifically discusses husbands and not spouses.  Currently, the State Office of Vital Statistics has interpreted the statute literally and does not allow two people of the same sex to appear on the birth certificate as parents, even in cases where the couple has used common reproductive technology methods to get pregnant during their marriage.

Therefore, my answer to the heading question is no, but all is not lost. Until the Florida Statutes themselves are rewritten to catch up to reality, same-sex couples must be very careful and prepared as they make big life decisions.  They should seek legal and/or financial advice prior to having children, buying property together, planning for retirement and, finally, when considering divorce, to help them avoid or, if necessary, overcome, any of legal difficulties the couple may face.  To complete the example from the previous paragraph, a couple in that particular situation with the right help, could petition the court for an order requiring that the other spouse be put on the birth certificate or could go through an adoption proceeding. Although the fight has just begun, there are still options that you can discuss with legal and financial advisors to clear some of the legal hurdles while the states await the decision of the Supreme Court.

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