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St. Thomas Law Review

First Page

407

Document Type

Comment

Abstract

Posik v. Layton has Florida lawmakers, attorneys, and gay rights activists paying attention. The Supreme Court of Florida, however, declined to accept the invitation to sort out this muddled opinion from a murky area of the law. The dispute in Posik arose from a failed lesbian relationship between the parties, who had drafted a contract analogous to a prenuptial agreement. Under the contract, Layton would provide financial support for the pair, and Posik would provide domestic services and live the remainder of her life with Layton. A liquidated damages provision, analogous to a support payment upon divorce, stated that Layton would pay Posik $2,500 per month upon breach of the agreement. When Layton began a relationship with a third party, Posik moved out and sued to enforce the contract. Applying common law contract principles to the agreement, the trial court held that while Layton had breached the contract, Posik had waived her right to declare breach; and further, that the $2,500 payment was void as a penalty. However, the appellate court recognized the contract as a prenuptial agreement and applied a remarkable mix of contract and family law to conclude that the contract was enforceable against Layton. In addition, the Florida Legislature recently passed a same-sex marriage statute, which is so broadly worded that its prohibitions arguably reach agreements like the Posik-Layton contract. Posik raises very important contemporary legal and social issues- issues the court dealt with only in part. In order to more adequately convey the singular legal and political position the case holds in Florida and the nation, Part II of this Comment sets the social and historical stage for this unique case. Part III explains the trial court's application of common law contract principles to the Posik facts, and the peculiar approach taken by the Fifth District Court of Appeal to resolve the factual and legal issues the case raises. Part IV analyzes the appellate court's approach and discloses several flaws and ambiguities in its reasoning. Part V discusses the new Florida statute which prohibits recognition within the state of any samesex marriage entered into within or outside of Florida. The question is whether the law reaches farther than many at first supposed, and more specifically, whether it might prohibit agreements like the Posik-Layton contract. Part V also compares the new Florida law to similar laws passed by Congress and many other states. Part VI explores cohabitation agreements and whether same-sex cohabitation contracts are enforceable in Florida. The Comment concludes by proffering several possible and reasonable avenues to resolve these issues.

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