Same-sex marriage in Florida enables same-sex divorce

Mariama Changamire Shaw listens during a court hearing on the granting of a divorce she sought from Keiba Lynn Shaw in March in Tampa. A judge rejected the divorce petition.
Mariama Changamire Shaw listens during a court hearing on the granting of a divorce she sought from Keiba Lynn Shaw in March in Tampa. A judge rejected the divorce petition.
Published Jan. 12, 2015

Hundreds of jubilant same-sex couples made history Tuesday, lining up all over Florida to exchange vows after a federal judge overturned the state's ban on same-sex marriage.

That same day in Miami, Jennifer Scott, 47, went to court for the flip side of that judicial ruling: Now Florida also must let gay and lesbian couples divorce.

It was "a very liberating moment," Scott said. "It let all the angst, frustration and anxiety that was lying under the surface for six years finally be released.''

Until Tuesday, same-sex couples were trapped in a legal limbo sometimes known in gay and lesbian circles as "wed-lock."

They had married in other states, but Florida considered their union illegal, and would not divorce them. Nor could they disentangle where they married because of long residency requirements for divorce.

"Just imagine having no refereeing mechanism for deciding about children and property," said Equality Florida CEO Nadine Smith. "People say, 'I love you. I want to spend my life with you.' They don't think of all the ways their lives become enmeshed when they marry."

Scott separated from her spouse in 2008, after 18 months of marriage. When she faced surgery, she couldn't rewrite her will solely to benefit her family, because Florida law insists that spouses receive assets.

A year and a half ago, Scott met her new love, Monica Strickland, 50, but they couldn't marry anywhere if Scott couldn't get divorced.

The 2010 census listed nearly 50,000 same-sex couples in Florida, though it is unclear how many are married. UCLA's Williams Institute, which studies what happens after states lift same-sex marriage bans, estimates that Florida can expect at least 25,000 same-sex weddings over the next three years.

Because other states have performed same-sex marriage for up to a decade, Miami lawyer Elizabeth Schwartz sees a pent-up demand for divorce in Florida.

"A lot of people are waiting legally, and emotionally, to move on,'' says Schwartz, who led the fight to overturn the marriage ban. "Folks are going to avail themselves of all the benefits of marriage, including divorce.''

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Divorce may not be easy, but not having access to it can make life even more complicated.

Married people cannot remove spouses as beneficiaries of tax-free retirement accounts, even if they haven't talked in years. The IRS does not allow married people to file as "single," which sometimes carries a tax penalty.

Schwartz had a client in the military. Her spouse had taken off and she began dating someone else. Her commander discovered Facebook photos and ordered her to break off the new relationship or face discipline for an inappropriate relationship, Schwartz said. "It was one step removed from a court-martial."

Tampa attorney Chris Hancock has a client who bought a house and car with her spouse, but the car was titled only in the spouse's name. After the split, Hancock's client kept driving what she had considered to be her car. But her estranged spouse got a judge to order its return because without a marriage, the title-holder had the only claim to it.

"Now we will get her a divorce,'' Hancock says, "and she will get 50 percent of the assets, including getting 50 percent of that car back.''

A judge rejected Tampa resident Mariama Changamire Shaw's divorce petition in 2012, citing Florida's same-sex marriage ban. Her attorneys appealed on constitutional grounds. If the 2nd District Court of Appeal follows the recent federal court ruling — and it likely will — Shaw's case should cement the obvious: The right to a marriage license also grants the right to a divorce.

That would be gratifying, Shaw said. She is finishing up a doctoral thesis and does not want it listed under her married name. Her health insurance premiums also run about $400 rather than $100, because the Affordable Care Act bases subsidies on marital income.

"This absolutely needs to be resolved,'' Shaw said. "Not just for me but for anyone in this country.''

Brandon attorney Mary Greenwood, who specializes in same-sex family law, had three calls last week from people seeking divorces.

Child custody issues can be critical, she says. Many same-sex couples raise children together, but frequently one parent has neither a biological nor adoptive relationship with the child.

So if the legal parent dies, the surviving spouse has no parental rights, no matter how long they have been in the child's life.

Florida allows married people to adopt their spouse's children through a fairly simple process known as step-parent adoption. But that requires a marriage recognized in Florida, which until Tuesday excluded same-sex couples.

Same-sex couples sometimes used another form of adoption so both could have parental rights, but it was an expensive, cumbersome process.

With marriage — and divorce — now legal, Greenwood urged all same-sex couples with children to initiate a step-parent adoption if parental rights are not already clear.

"We are going to have to broaden our idea of what a parent is and who is entitled to rights as a parent,'' Greenwood said.

• • •

This new legal landscape stands to benefit not just couples but also the legal profession.

About a year ago, Miami attorney Jake Miller and his law partner paid GoDaddy $9.99 to buy the Web domain "gaydivorce''

Until Tuesday, the firm's martial advice to gay and lesbian clients about marriage centered on prenuptial contracts designed to sort out assets, alimony and child support in case of divorce.

Miller also made sure clients knew that a few states, such as Vermont, now waive residency requirements if same-sex couples want to return later for a divorce.

Clients would "say they were running off to Provincetown (Mass.) or Manhattan,'' Miller says, "and my immediate response was to say you could get wed-locked unless you go to Vermont or one of the other jurisdictions."

One client married his spouse in a New York penthouse overlooking the Empire State Building, Miller says. But the relationship soured and the client's Facebook page "went into radio silence."

On Tuesday, Miller says, he ran into his client at a Publix. The man "grabbed my arm and said, "Let's make this divorce happen.' ''

Within days, Miller was buying up more Web domain names that allude to — as he calls it — "Gay-Vorce."

Business is about to grow.

Contact Stephen Nohlgren at