This document outlines context and issues related to non-marital agreements for both opposite-sex and same-sex couples. It discusses demographic data on the LGBT population nationally and in Florida. It provides an overview of key considerations for non-marital agreements, including financial disclosures, property division, support, termination, and defenses. It also summarizes the legal landscape surrounding same-sex marriage before and after the Obergefell decision.

1. Christopher W. Rumbold
THE LAW OFFICE OF CHRISTOPHER W. RUMBOLD, PLLC
cwr@cwrlaw.net/954.914.7866

2. Outline
• Context
• Demographic
• Statistical
• Historical
• Non-Marital Agreements
• Prenuptial Agreements/Postnuptial Agreements
• Emerging Issues
• Foreign
• Domestic
2

3. Context - Pre/Post-Obergefell
• Non-Marital Agreements
• Prenuptial Agreements
• Postnuptial Agreements
***Are the purposes & intents & factors
regarding requisite provisions predicated
upon, or materially/substantially determined
by, your Client’s sexual orientation?
3

4. Context - Population
Nationally
• Approximately 8,000,000 Americans identify as LGBT.646,464
same-sex households; in Florida 48,496. 220,000 children
reared in same-sex households. 13.31% of same-sex couples
are raising at least one child. Same-sex couples are 4X more
likely to adopt and 6X more likely to foster than opposite-sex
couples and are more likely to adopt children of color and
children with special needs than opposite-sex couples.
Florida
• Approximately 540,000 Floridians identify as LGBT. 48,496
same-sex households. 13,500 children reared in same-sex
households. 16% of same-sex couples are raising at least one
child.
4

5. Context – Marriage Alternatives
• 2011 Census – Cohabitating couples – 7.6 million opposite
–sex couples and 514,735 same-sex couples.
• 2009 HHR – Same-Sex Couples married 2,077,000 times.
The average divorce occurred 8 years later.
• Sex Variables:
• Opposite-Sex – Cohabitate but also Marry and Divorce at will.
• Same-sex – Cohabitate but not Legally Marry.
• Same-sex – Cohabitate but now also Marry and Divorce at will.
• Same-sex – Cohabitate in Other Legally recognized union that
survived marital equality.
5

6. Context - Marriage Statistics
• Based upon studies from states that permit same-sex marriage,
approximately 50% of same-sex couples marry when afforded
the opportunity. E.G. Fitzgerald, THE WILLIAMS INSTITUTE,
UCLA SCHOOL OF LAW, ESTIMATING THE ECONOMIC
BOOST OOF MARRIAGE FOR SAME-SEX COUPLES IN
FLORIDA (2014).
• It is estimated that the economic impact of 24,248 marriages
would add $182.2 million in revenue to Florida’s economy over
the first three years, and add $12.1 million in sales tax revenue
and create between 875 to 2,626 jobs. (In Washington, for
instance, 17% of same-sex weddings are out-of-state citizens.)
• Translated for matrimonial attorneys? $$$$$$$$$$$$$$$$$$$$
6

7. Brainteaser #1A
When marital bliss turns to bitterness:
• Ward and June met in 1995. It was love at first sight, so they
moved in together that same year and made they relationship
official. For the duration of their relationship June worked
outside of the home, while Ward raised the parties’ children. In
2005, June began an extra-marital relationship with another
man, and, upon learning of same, Ward vacated the house and
immediately ended their 20 year relationship. Ward has
scheduled a consultation with your office, and, at same, he
expects a complete analysis of his expected entitlements to
support and asset distribution. June earns $100,000.00
annually and the parties acquired $500,000.00 in assets while
they were together.
• Is Ward an alimony candidate? Is Ward entitled to
approximately $250,000.00 in asset distribution?
7

8. Brainteaser #1B
When marital bliss turns to bitterness:
• Mark and John met in 1995. It was love at first sight, so they
moved in together that same year and made they relationship
official. For the duration of their relationship John worked
outside of the home, while Mark raised the parties’ children. In
2005, John began an extra-marital relationship with a woman,
and, upon learning of same, Mark vacated the house and
immediately ended their 20 year relationship. Mark has
scheduled a consultation with your office, and, at same, he
expects a complete analysis of his expected entitlements to
support and asset distribution. John earns $100,000.00
annually and the parties acquired $500,000.00 in assets while
they were together.
• Is Mark an alimony candidate? Is Mark entitled to
approximately $250,000.00 in asset distribution?
8

9. NMAs – Decisional Law
• Florida Courts have long recognized the ability of individuals to
establish rights and responsibilities attendant to their
personal/familial relationships by contract and enforced same
based upon their constitutionally protected private property and
contract rights.
• Posik v. Layton, 695 So.2d 759 (Fla 5th DCA 1997).
• Dietrich v. Winters, 798 So.2d 864 (Fla. 4th DCA 2001).
• Crossen v. Feldman, 673 So.2d 903 (Fla. 2d DCA 1996).
• Wakeman v. Dixon, 921 So.2d 669 (Fla. 1st DCA 2006).
9

10. NMAs - Generally
•Treat the document as if you were preparing a pre/post-nuptial
agreement in that all of the client’s rights with respect to assets,
expenses, income, support, distributions, attorneys fees,
procedural processes and estate provisions should be addressed.
•As Chapters 61 and 732 do not apply to unmarried individuals
there are no “defaults” to your agreement - if you fail to include a
provision (right, benefit or obligation) your client loses it and,
you speed dial your malpractice carrier.
•Pre/Post-Obergefell?
10

11. NMAs- DNA (1 of 2)
Recitals
Reflection Independent/Decision Making
Consideration
Effective Date
Financial Disclosures
Common Law Marriage Exclusion
Property - Separate
Property Acquisition – Separate/Joint
Property Disposition – Joint
Income/Expense Payments – Intact
11

12. NMAs - DNA (2 of 2)
Support Payments – Post-Relationship
Equitable Relief
Death Provisions
Waiver of Contractual Rights
Attorney’s Fees
Default/Breach
Termination
Dispute Resolution
Incorporation into Judgment
Venue, Forum, Acknowledgments
Boiler Plate Provision
12

13. NMAs – Peppercorn
• Marriage:
• Ashby v. Ashby, 651 So.2d 246 (Fla. 4th DCA 1995)(Holding that
a contracting party’s agreement to do that which is not required
or forego that which is entitled is sufficient consideration for
contract.
• Diaz v. Rood, 851 So.2d 843 (Fla. 2d DCA 2003)(Holding that
a court’s inquiry as to consideration is whether valid
consideration existed not the sufficiency of the consideration.)
• Partnership:
• Stevens v. Muse, 562 So.2d 852 (Fla. 4th DCA 1990)(Holding
that agreements between unmarried persons will be enforced if
there is lawful consideration (as traditionally defined)).
13

14. NMAs- Assets
• Marriage:
Fla. Stat. §§61.075, 61.076, 61.077
• Partnership:
Define jointly-titled and acquired property. Define the payment of
expenses or liabilities associated with jointly-titled and acquired
property. Define the valuation and disposition of jointly titled and
acquired property in the event of a termination event. Define the right
to, or waiver of, appreciation in separate property.
• Mclane v Musick, 792 So.2d 702 (Fla. 5th DCA 2001).
• Provence V. Palm Beach Taverns, Inc., 676 So.2d 1022 (Fla. 4th DCA
1996).
• Sorrells V. McNaly, 89 Fla. 457 (1925).
14

15. NMAs – Alimony/Fees
• Marriage:
• Fla. Stat. §61.071, 61.08, 61.09, 61.10 and 61.14
• Belcher v. Belcher, 271 So.2d 7 (Fla. 1972)(Holding that waivers
of temporary financial relief during intact marriage are contrary to
public policy and, as such, said provisions will not be enforced. )
• Lashkajani v. Lashkajani, 911 So.2d 1154 (Fla. 2005); Berg v.
Young, 2015 WL 5125418.
• Partnership:
• No legally based duty to support. No legally based entitlement for
support. No legally based entitlement to share in the income of
the other. Include provisions for support during relationship/ post-
relationship. Include methodology for computation of support
amount if not fixed rate. Include fee provision.
• Khan v. Khan, 79 So.3d 99 (Fla. 4th DCA 2012). 15

16. NMAs – Termination (1 of 2)
• Marriage:
• §61.011, 61.021, 61.031, 61.043, 61.052
• Partnership:
• Define the manner in which the partnership is terminated – notification,
delivery, interim terms, etc.
• Define whether disputes under the contract are to be submitted to
mediation or arbitration in advance of filing for enforcement. Define
rights, entitlements and obligations during pendency of enforcement
action.
• Civil Contact Dispute – Civil Court ***Jury Trial
16

17. NMAs - Termination (2 of 2)
• Practice Point: Always contain a choice of law provision as to the
applicability of Florida Law regardless of forum state of litigation.
• Practice Point: Always contain an inoperability provision such that if the
parties move to a state which recognizes common law marriage and if,
thereunder, their relationship would qualify, that they specifically affirm,
agree and attest that their relationship is not a marriage, whether defined
statutorily or by operation of law, and that they knowingly, intelligently and
willfully waive any relief of any kind whatsoever to which they may have
been entitled.
• Practice Point: Always contain a provision which defines whether the
operability of the agreement survives any future marriage of the parties,
and, if so, whether the original document will be reaffirmed or whether the
original document will be revised based upon the applicability of the
statutory law now available.
17

18. NMAs – Defenses (1 of 2)
• Abandonment: American, 489 So.2d 839 (Fla. 1st DCA 1986).
• Act of God: Seaboard, 70 So. 467, 469 (Fla. 1915).
• Breach by Third Party: Bryan, 237 So.2d 236, 238 (Fla. 4th DCA 1970),
appeal after remand, 265 So.2d 382 (Fla. 4th DCA 1972).
• Damages: Scott-Steven Development, 167 So.2d 763, 764 (Fla. 3d DCA
1964), cert. denied, 174 So.2d 32 (Fla. 1965).
• Discharge: Nacooche Corp. v. Pickett, 948 So. 2d 26, 30 (Fla. 1st DCA
2006).
• Duress: Davis v. Hefty Press, Inc., 11 So.2d 884, 886 (Fla. 1943).
• Failure of Consideration: Maryland Casualty Co., 174 So.2d 541, 543
(Fla. 1965).
• Fraud: Lance Holding Co., 533 So.2d 929, 930 (Fla. 5th DCA 1988).
• Frustration: Home Design Center Venture, 563 So.2d 767, 770 (Fla. 2d
DCA 1990).
18

19. NMAs – Defenses (2 of 2)
• Hindering the Performance of the Other: Hanover
Realty Corp., 95 So.2d 420, 423 (Fla. 1957).
• Illegality: McIntyre, 429 So.2d 1296, 1297 (Fla. 3d
DCA 1983), rev. denied, 438 So.2d 833 (Fla. 1983).
• Impossibility: Walter T. Embry, Inc., 792 So.2d 567,
570 (Fla. 4th DCA 2001), subsequent appeal, 868
So.2d 661 (Fla. 4th DCA 2004).
• Mistake: Williams, Salomon, Kanner, Damian,
Weissler & Brooks, 436 So.2d 233, 235 (Fla. 3d DCA
1983).
• Rescission: Florida Insurance Guaranty Assoc., Inc.,
732 So.2d 456, 457 (Fla. 2d DCA 1999).
• Unconscionability: Barakat, 771 So.2d 1193, 1194
(Fla. 4th DCA 2000). 19

20. Marriage – An Enduring Institution
• Pre-Obergefell (Opposite-Sex Couples) –
Florida
• Pre-Obergefell (Same-Sex Couples) – Fla.
Stat. §741.212 (2) (2012) precluded the State
of Florida from recognizing same-sex
marriages validly entered in other states.
• In 2010, the following states recognized
marriage: MA, CT, IA, VT, NH and ME and by
2013 the additional following states recognized
marriage: NY, MD, CA, WA, DC, DE, RI and
MN and/or civil unions/partnerships: HI, NJ, IL,
CO, NV, OR and WI.
• In the Pareto Amicus Brief, we noted…
20

21. Marriage – Transcends Singularity
“No union is more profound than marriage, for it embodies the
highest ideals of love, fidelity, devotion, sacrifice, and family. In
forming a marital union, two people become something greater
than once they were. As some of the petitioners in these cases
demonstrate, marriage embodies a love that may endure even
past death. It would misunderstand these men and women to
say they disrespect the idea of marriage. Their plea is that do
respect it, respect it so deeply that they seek to find its fulfillment
for themselves. Their hope is not to be condemned to live in
loneliness, excluded from one of civilization’s oldest institution.
They ask for equal dignity in the eyes of the law. The
Constitution grants them that right.”
21

22. Marriage – Financial Reality
The Court held that all states must provide married same-sex
couples with the full “constellation of benefits” associated with
marriage “on the same terms and conditions as opposite-sex
couples.” And, that States may not, consistent with the
Fourteenth Amendment, deny rights, obligations, conditions or
benefits of marriage based on the sex of the spouses.
22

23. Marriage – Federal, State, Foreign
• U.S. v. Windsor, 133 S. Ct. 2675 (2013). Section 3 of DOMA
violated the right to equal protection of same-sex couples who
were legally married under state law but denied recognition
under federal law.
• Obergefell v. Hodges, 576 US _____ (2015). Section 2 of
DOMA struck on same grounds as states could not deny
marriage licenses to same-sex couples or refuse to recognize
their foreign marriages.
• PR-15-170 – Belgian same-sex marriage was determined to be
valid and enforceable thereby entitling wife/spouse to collect
deceased wife’s insurance benefits.
23

24. Marriage – “Constellation?”
• At least 1,138 Federal Laws are predicated upon marital
status. (See list of federal laws contained in the attached 1997
GAO Report and 2004 GAO Update.)
• At least 500 State Laws are predicated upon marital status.
(Cassondra Fredriksen, The Florida Five Hundred: Rights and
Privileges Denied by the Marriage Ban in Florida.)
• Of that, the 174 “marital and family law” statutes have been
reviewed by the Nomenclature Committee of the Family
Law Section of the Florida, 56 having been identified as
requiring revision to achieve gender neutrality, and it is
anticipated that same will be submitted to Tallahassee for
consideration during the next legislative session.
24

25. Marriage – Equality in Name Only
• Massachusetts – May 17, 2004. MGL c. 207 – (Same laws and
procedures apply…) / Della Corte v. Ramirez, 81 Mass. App. Ct.
906 (2012)(Child born of marriage is legitimate child of both
spouses.)
• Iowa – April 3, 2009. Gartner v. Iowa Dep’t Public Health –
2013 (Iowa Supreme Court – unconstitutional not to list non-bio,
non-adoptive mother on birth certificate.)
• Florida – Chin v. Armstrong, Case 4:15-cv-00399-RH-CAS filed
on August 13, 2015. (Does Section 382.013(2)(a) apply equally
to birth certificates of children of same-sex couples.
• New York – Paczkowski v. Paczkowski, 2015 WL 2386457
(N.Y.S. 3d 2015). (Non-biological, non-adoptive same-sex
mother of child born during marriage was not legal mother.)
25

26. Marriage – A Rose By Any Other Name
• I know you are thinking, “This guy passed the Bar?!?”
• Hunter v. Rose, 463 Mass. 488 (2012) – A registered domestic
same-sex partnership entered into California was held to be the
equivalent of marriage in the Commonwealth.
• As of October 1, 2010, all Connecticut civil unions were
converted into marriages by operation of law. Upon conversion,
these couples were granted automatic inclusion to many, but
not all, of the State laws predicted upon marital status.
• New Hampshire 457:45: “A civil union legally contracted
outside of New Hampshire, or any legal union other than a
marriage that provides substantially the same rights, benefits
and responsibilities as a marriage that is legally contracted
outside of New Hampshire, shall be recognized as a marriage in
this state…”
26

27. PNAs/PNAs - DNA
Whereas Clauses
Consideration*
Document Exchange and Acknowledgment
Asset Identification & Treatment*
Income Identification & Treatment*
Alimony & Treatment*
Estate & Death Provisions
Aspirational Provisions – Children
Enforcement & Fee Provisions
Boilerplate*
*Denotes Sections Addressed by this Presentation. Also, while our roles are generally dictated by the
monied spouse or the impecunious spouse, for same-sex couples, they often both benefit from
conditions/rules that account for their pre-marital status and the interplay existing assets.
27

28. PNAs/PNAs – Equivalents?
• Query: Is it possible under Florida Law that other forms of
union – not marriages – could be determined to be the
substantial equivalent of marriages? If so, would the analysis
change if following entry into the other form of union, marriages
became available to the parties but that the parties did not
marry. And, if the parties under their other form of union
entered into a domestic relations contract, would that contract
be enforceable in their dissolution action? And, if it was
enforceable and contained a choice of law provision which
dictated application of the foreign state law, but the foreign state
law recognized marriage (under marital and family law) and
other forms of union (under contract law) which would the
Florida Court apply?
28

29. Brainteaser #2
• Same-sex male couple (Tom and Tim) meet in 2000. They
become registered domestic partners in Florida in
2001. They accumulate assets and income in individual
names. They relocate to Connecticut and enter into a civil
union in 2005. Tom and Tim agree that Tom’s income is
sufficient that Tim can remain at home and raise the parties’
first child, Tony, that was conceived using a surrogate and
Tim’s sperm. Tom did not adopt Tony but appears on the
birth certificate and an executed, notarized voluntary
acknowledgment of paternity. They continued to reside in
Connecticut until 2013 and between 2005 -2015 acquired
income and assets in their joint names, had their civil union
converted to a marriage by operation of Connecticut Law
(2010), and they had, in 2012, their second child, Tonya,
using a surrogate and Tim’s sperm which Tom, again, did not
adopt. In June 2015, they move to Florida and Tom files a
Petition for Dissolution. 29

30. PNAs/PNAs – Assets (1 of 2)
• 61.075(1) - The court shall set apart to each spouse that spouse’s
nonmarital assets and liabilities, and in distributing the marital assets
and liabilities between the parties, the court must begin with the
premise that the distribution should be equal, unless there is a
justification for an unequal distribution based on all relevant factors.
• 61.075(7) - The cut-off date for determining nonmarital/marital assets
and liabilities includes “such other date as may be expressly
established by such agreement.”
***Consider potentially competing philosophical underpinnings.
***Consider whether results are equitable.
30

31. PNAs/PNAs – Assets (2 of 2)
• 61.075(6)(a)(1-3) - Marital assets/liabilities include: Assets acquired and
liabilities incurred during the marriage. The enhancement in value and
appreciation of nonmarital assets from marital effort/monies. Interspousal
gifts during the marriage. Vested and nonvested benefits accrued during
the marriage in retirement accounts. All real and personal property held by
the parties as tenants by the entireties.
• 61.075(6)(b)(1-3) - Nonmarital assets and liabilities include: Assets
acquired and liabilities incurred by either party prior to the marriage, and
(acquired/incurred). Assets acquired separately by either party by
noninterspousal gift, bequest, devise, or descent, and (acquired in
exchange). All income derived from nonmarital assets during the
marriage. Assets and liabilities excluded from marital assets and liabilities
by valid written agreement of the parties, and (acquired/incurred). Any
liability incurred by forgery or unauthorized signature of one spouse
signing the name of the other spouse.
31

32. PNAs/PNAs – Alimony (1 of 2)
• Alimony - Fla. Stat., §61.08 (4): “The length of a marriage is the
period of time from the date of marriage until the date of filing an
action for dissolution of marriage.”
• Alimony - Fla. Stat., §61.08 (2)(a)-(j).
1. $937.50-$1,250.00 / 3.75-11.25 years (15 - $50K)
2. $625.00-$833.33 / 2.50 – 7.50 years (10 - $50K)
3. $291.66 - $416.66 / 1.25 – 3.75 years (5 - $50K)
4. $62.50-$83.33 / .25 - .75 years (1- $50K) HB 943 (2015)
***Consider potentially competing philosophical underpinnings.
***Consider whether results are equitable.
32

33. PNAs/PNAs – Alimony (2 of 2)
• Date of Marriage?/Facts.
• Pre/Post Marriage or Agreement?/Facts.
• Include deviation factors and decisional law/current proposed
failed bill to underscore the inequity.
• Notwithstanding Belcher, if facts and circumstances warrant,
specifically provide for temporary alimony and temporary
attorney’s fees.
*Are you charged with creating, expanding rights or limiting,
eliminating rights?
33

34. PNAs/PNAs – Trifurcate
• Unless otherwise specified in the Agreement, and if that Agreement
was entered in a foreign state and by application of a Choice of Law
Provision, applies that State’s Law, you may consider filing a motion
seeking a trifurcated proceeding:
• First, the Court must determine what the document is and how it
operates under the foreign law. Second, if the document is a
domestic partnership agreement or a civil union contract, would it be
enforceable in a Florida Family Court? If the document is a domestic
partnership agreement or a civil union contract that is enforceable,
under the foreign state’s law, on the same terms as a prenuptial
agreement or postnuptial agreement, would it be enforceable in
Family Court? Finally, assuming enforceability as a marital contract
in Family Court, are all provisions automatically binding and
enforceable upon the parties?
• McNamara v. McNamara, 988 So.2d 1255 (Fla. 5th DCA 2008).
• Second & Third, discovery limitations pending determination of
validity and enforceability of the document. 34

35. PNAs and Marriage
• Florida Law recognizes that contracts, including contracts which
provide domestic relations rights, may be rescinded by the act or
acts of the parties.
• In McMullen v. McMullen, 515 So.2d 1298 (Fla. 3d DCA 1987) the court
held that the parties antenuptial agreement was abandoned by mutual
consent without consideration when the Husband, “tore up a copy of the
antenuptial agreement that he considered he believed it to be the original
and intended its terms to be of no further force and effect.”
• Less dramatically, in Plant v. Plant, 320 So.2d 455 (Fla. 3d DCA 1975), the
Court held, that a prenuptial agreement of questionable validity, was
abandoned when the Husband failed to obtain a $200,000.00 life
insurance policy on his life for the Wife’s benefit as required by their
agreement.
• Actions may indicate abandonment of a written contract, Sinclair Refining,
Co. v. Butler, 172 So.2d 499 (Fla. 3d DCA 1965) and once abandoned, as
cautioned by the Court in Boswell v. Dickinson, 300 So.2d 61 (Fla. 1st DCA
1974) it may not be specifically enforced.
35

36. Brainteaser #3
Florida couple enters a domestic relations
agreement in 2005 which establishes their
rights, responsibilities, duties, obligations
and entitlements during the relationship and
upon its conclusion. In 2007, they fly to
California to be married. Upon their return
to Florida, they execute a “reaffirmation
agreement” as to the continued validity of
the domestic relations agreement after their
marriage. In 2015, they marry in Florida and
do not execute a “reaffirmation
agreement.” The parties split six months
later and during your consultation, your
client provides you the Petition for
Dissolution of Marriage which seeks
ratification of the domestic relations
agreement to the exclusion of Florida Law.
36

37. Brainteaser – Guess?
• THE AGREEMENT IS:
Enforceable or Unenforceable?
• Under Florida Law initially?
• After the parties’ marriage in California?
• After each party’s execution of the reaffirmation agreement?
• Following their Florida nuptials and during their Florida
dissolution of marriage action?
37

38. Case Study - (California)
• In Konou v. Wilson, (Cal. App. First DST., Div. 2; December 13,
2012) 211 Cal. App. 4th 1284, the question presented to the
Court was whether a waiver by one party in a domestic
partnership agreement as to estate rights of the other party
survived their subsequent marriage thereby precluding
payment to the surviving spouse of his marital share of the
decedent’s estate.
• The Court concluded the waiver was enforceable and that
neither the issuance of a marriage license nor the change in
status from domestic partner to spouse, under California Law at
that time, rendered the agreement inoperable. The court
analogized and analyzed the document under California’s
UPPA.
38

39. Case Study - (Canada’s FLA)
• In Canada, pursuant to the Family Law Act, R.S.O. 1990,
Chapter F.3, Part III (Support Obligations), Paragraph 4 and 9,
while the Act specifically provides for and the Court specifically
recognizes Cohabitation Agreements as a form of enforceable
Domestic Contracts, the Court (4) has the authority to set
aside the support obligations of the document, and the
Court (9) has the authority to consider the period of
cohabitation in establishing its support award.
• Additionally, in Part IV (Domestic Contracts) Section 53,
Paragraphs (1) and (2), the Act (1) establishes the legal
requirements of a valid Cohabitation Agreement and it also (2)
confirms that any subsequent marriage of two previously
cohabitating partners is the combined duration of their
marriage and cohabitation.
39

40. Case Study - (NJ/MS/WA)
• New Jersey (and Missouri) – New Jersey marital law will
supersede a cohabitation agreement entered between the parties
prior to marriage but not in contemplation of that marriage. The
cohabitation agreement (except in very limited circumstances) must
be converted into a prenuptial agreement to survive marriage.
(Missouri’s approach is similar to New Jersey).
• Washington – A Washington domestic partnership dissolves upon
marriage. In determining the date of marriage, any duration of
existence in a state registered domestic partnership is merged with
the duration of marriage (retroactive to date of entry). As to the
validity of any domestic relations agreement entered prior to
marriage, the Secretary of State notified domestic partners that upon
the change in law, their “status” would change and their “rights and
responsibilities” under the law will likewise change. 40

41. Case Study – CO Statutory Reform
• Colorado recognizes common-law marriage. Colorado also recognizes civil
unions entered within its borders and outside of its borders. Couples in a
civil union, cannot become common-law spouses. Couples in a civil union,
may remain in that civil union protected by the laws related to civil
unions. Alternatively, they may marry chose to marry and, if so, and upon
agreement of both parties, have the duration of their civil union merged with
the duration of their marriage. (Section 3, 14-10-106.7).
• For instance, the Definition of Duration of Marriage for Maintenance
Purposes means the number of months from marriage until final judgment
inclusive of any period of time spent in a civil union. (Section 4, 14-114).
* (Colorado’s Civil Union Act (2013) and Senate Bill 15-016 (2015))
41

42. Case Study – FL (Historic 1 of 2)
• Florida Law has never recognized or created the statutory
status of a Domestic Partnership, however, on a county by
county basis, Domestic Partnerships have been recognized and
regulated. As previously noted however, Florida Courts have
enforced contracts between consenting adults which provide
similar rights to marriage and which are based on the similar
“partnership” theory of a dyadic relationship.
• Florida Domestic Partnership Legislation – (SB 1666 – Senator
Sobel).
• Lowe v. Broward County, 766 So.2d 1199(Fla. 4th DCA
2000)(Determining validity of Broward County Domestic
Partnership under Article VIII, Section 1 (g) of the Florida
Constitution).
42

43. Case Study – FL (Historic 2 of 2)
• Anderson v. Anderson, 577 So.2d 658,660 (Fla. Dist. Ct. App.
1991) – “all presumptions necessary to make a marriage valid,
including capacity to contract, attach upon proof of a ceremonial
marriage and cohabitation by the parties under the belief that
they were lawfully married.”
• Johnson v. Lincoln Square Properties, Inc., 571 So.2d 541,542
(Fla. 2d DCA 1990) – Florida generally approves of the act of
marriage, regardless of where it occurs, and presumes a
marriage is valid.
43

44. Case Study – FL (Recent)
• Maxwell v. Stephens-Maxwell, Case No.: 50214DR010428 – dated January
21, 2015, PBC – “To afford constitutional protections to which Petitioner is
entitled…”husband” in Section 742.11…mean[s] spouse of child bearing wife.”
• Gossard v. Burns, Case No.: 502015DR001070NB – September 9, 2015, PBC
– “Based on the fact the United States Supreme Court recognized same-sex
marriages…[and] throughout the State of Florida same-sex marriages are
being dissolved, I’m going to find that a [Vermont] civil union is the substantial
equivalent of marriage and take jurisdiction.
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45. Brainteaser – Guess Again?
• THE AGREEMENT IS:
Enforceable or Unenforceable?
• Under Florida Law initially?
• After the parties’ marriage in California?
• After each party’s execution of the reaffirmation agreement?
• Following their Florida nuptials and during their Florida
dissolution of marriage action?
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46. Family Law – Knowledge/Candor
• Know what you know;
• Know what you do not know;
• Know what you cannot know at this time;
• Know what you could know at this time if you called the right person and
asked the right questions; and
• Know when to retain expert foreign counsel.
• ADVISE AND CAUTION YOUR CLIENT ACCORDINGLY AND IN
WRITING AS TO THE INHERENT RISKS ASSOCIATED WHEN
LITIGATING GREY AREA ISSUES (OR SIMPLY NOVEL FACT
PATTERNS) IN THE ABSENCE OF A BODY OF EXISTING STATUTORY
AND/OR DECISIONAL LAW.
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47. Monica Offredi, Esq., Daniela Mitrovic
and Corey Rumbold of the LAW OFFICE OF
CHRISTOPHER W. RUMBOLD, PLLC for their
assistance and dedication to this presentation.
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Special Thanks To:

48. THANK YOU KINDLY
FOR YOUR
TIME AND ATTENTION
A Special Note of Gratitude to the
Orange County Bar Association Family Law
Committee
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