Gay Couples Can't Marry in Texas, But Can They Divorce There?
Texas courts are grappling with complex legal issues in two same-sex divorce cases.

July 11, 2010 /24-7PressRelease/ -- Five states and the District of Columbia currently permit homosexual marriage. These jurisdictions logically also grant divorces to homosexual couples who are legally married. However, the legal status of married same-sex couples is not recognized in many other states that define marriage as a union existing solely between a man and a woman.

Texas, one of the states that define marriage in this way, is currently grappling with the reality that some homosexual couples legally married in Connecticut, Vermont, Massachusetts, Iowa, New Hampshire or Washington, D.C., are moving to Texas and may seek to divorce there. Two lower courts have ruled that these couples may obtain divorces in Texas because of its constitutional obligations of equal protection under the law, and full-faith-and-credit recognition of other states' legal acts. However, the Texas Attorney General is attempting to halt the divorces, insisting that homosexual marriages legally recognized in other states should be voided under Texas law.

Arguments Against Homosexual Divorce in Texas

The Texas Attorney General argues that voidance is the proper way to terminate "any purported marriage that is not legally valid in the state of Texas, including the same-sex relationships that may be considered marriages in other states." He insists that because Texas defines marriage as a union between a man and a woman, the state cannot dissolve a same-sex marriage that legally does not even exist in Texas. Thus, in granting a same-sex divorce, Texas would be recognizing same-sex marriage, which is against Texas law.

Arguments in Favor of Homosexual Divorce in Texas

Divorce is a complex process and involves several elements beyond simply severing the legal ties between two people. Issues of spousal support, asset division, child support and child custody are governed by the family law process of divorce. By not allowing married couples to divorce, the equal parenting rights of both parties may be compromised in custody proceedings. Bob Luther, an attorney in one of the pending appellate cases, insists that it is vital that a homosexual couple be given equal access to the legal framework and judicial oversight that all other couples are subject to in child custody cases, for the benefit of both the parents and the children in question.

The financial settlement of the couple may also be negatively affected. Should the Attorney General succeed in voiding these marriages, the couples will not be allowed to use legal property settlements that heterosexual couples are entitled to enter into under the law. Another lawyer representing one of the divorcing homosexual couples insists that by forcing same-sex couples to void their marriages, rather than using the established divorce process, Texas would be creating a separate class for homosexuals in violation of equal protection. They are, he maintains, entitled to divorce because they obtained legally valid marriages.

What's Next?

Historically, Texas has recognized marriages that were legalized out-of-state. Generally, all states recognize out-of-state marriages under the doctrine of Full Faith and Credit. States generally grant divorces to those who wed out of state. However, states are split as to whether they will recognize out-of-state homosexual marriages and grant homosexual divorces. A Pennsylvania judge recently refused to divorce a lesbian couple who had married in Massachusetts, and Rhode Island has similarly disallowed homosexual divorce. However, New York, which does not recognize same-sex marriage, grants divorces to homosexual couples who have been legally wed elsewhere.

Both Texas divorce cases currently being appealed by the Attorney General are -- regardless of the outcome of each case -- expected to be appealed even further to the Texas Supreme Court. This process will undoubtedly take months or even years. In the meantime, homosexual couples will be forced to remain in their marriages, obtain residency in states that grant homosexual divorce or file for divorce in Texas with the uncertainty of whether the divorce decree will ultimately be upheld as legal.

For Further Reference

If you are a gay individual who was legally married in Connecticut, Massachusetts, Iowa, New Hampshire, Vermont or Washington, D.C., and are now seeking divorce in a state which does not permit gay marriage, please contact an experienced family law attorney who can help you explore your options.

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