Same Sex Marriage Also Allows Relief to Same Sex Couples Wanting a Divorce

As soon as gay marriage became legal in Florida, divorce did too, and being able to legally dissolve a union was almost as freeing to some same sex couples as was the freedom to finally have the right to get married. Indeed, on the first day same sex marriage was legal in January of 2015, a Florida judge also granted a divorce to a same sex couple. There were many couples who had been married in other states and moved to Florida. Since same sex marriage was not recognized by the State of Florida, the State could also not legally grant a divorce.

That left a lot of couples in limbo and with complicated legal issues that were a burden financially as well as emotionally. Separated same sex couples faced difficulties in simple things like filing income tax returns. The IRS does not allow married people to file as single adults, so even though their marriage was not recognized in Florida, they still had to file as married and that caused a penalty in some cases. In other cases, they were not able to write wills because Florida law requires that spouses have certain rights. It was very murky legal ground for couples in this situation and put them in a bind.

People in this situation could not add or remove beneficiaries from insurance policies or from IRA’s. They were trapped by the marriage from another state. Some couples started calling that situation “wed-lock.”

Another issue for couples is that if they had been married in another state and separated in Florida, they would not be able to get married to even a heterosexual partner if another state recognized the legal marriage still in effect of one of the people involved. It is not clear if, as Florida residents, they could have gone back to the state that issued the marriage and got a divorce there. The State of Florida requires that at least one spouse reside in Florida for at least six months prior to the filing of a petition for dissolution of marriage. It would be difficult for parties to travel to another state to get divorced if that state has similar restrictions. The policy behind that restriction is to prevent couples from “forum shopping” when pursuing a divorce. However, it further restricts and limits same sex married couples wishing to end their marriages.

Some couples had to get creative and consider entering into post-nuptial agreements in states that did not recognize their marriage, and therefore could not get divorced. Couples used those post-nuptial agreements to separate and divide their jointly owned property so they could, at the very least, separate their finances even if they were forced to remain legally married.

The 2010 census estimated there were 50,000 same sex couples in Florida, but it was not known how many were married from other states or how many desired to get a divorce but could not. The Williams Institute at UCLA studies issues involving states legalizing same sex marriage. They estimate there will be 25,000 same sex marriages over the next three years. For some couples being allowed to get a divorce is another step they will have to take before they can get married.

But with the legalization of same sex marriage, the issue is put to rest to some degree. An article in the Tampa Bay Times said there is little legal precedence for handling same sex divorces. So far they are being treated the same as opposite sex couples as far as legalities involving property and child custody issues. Logically, there should be no difference in how the divorces are handled. The majority of divorces must address similar issues, such as issues relating to children of the marriage, how to divide marital assets and debts, and determining spousal support, if any. While there were many couples rejoicing that they could finally tie the knot, there were also many who were happy that they could finally untie theirs.

Article updated October 28, 2020.