A federal judge in San Antonio struck down the ban on same-sex marriage earlier this year citing that the ban has “no legitimate governmental purpose.” In fact, the judge said that the ban is unconstitutional because it prevents equal rights across the board for marriage. Even though this seemed to be a large step for the LGBT community, the law prohibiting same-sex marriage is still in effect until the decision can complete the appeal process. Attorney General Greg Abbott plans to fight for Texas’ right to regulate the marriage institution.
Thus, the Texas ban continues on same-sex marriage but the question of same-sex divorce is becoming an ever increasing issue in the family law world. Reason being, because Texas does not recognize same-sex marriage it also in turn does not currently recognize same-sex divorce. That is, if you and your partner get married out of state and move back to Texas you only have two choices right now—either just separate indefinitely or declare the marriage void.
Texas Family Code Section 6.204(b) states that “a marriage between persons of the same sex for a civil union is contrary to the public policy of this state and is void in this state.” Further, subsection (c) states “The state or an agency or political subdivision of the state may not give effect to a (1) public act, record, or judicial proceeding that creates, recognizes, or validates a marriage between persons of the same sex or a civil union in this state or any other jurisdiction; or (2) right or claim to any legal protection, benefit, or responsibility asserted as a result of a marriage between persons of the same sex or civil union in this state or any other jurisdiction.” Therefore, even if you are legally married in another state you are not considered married in Texas and therefore do not have the rights a married couple would have including the right to divorce. Many people do not see divorce as a right until it is considered in the context of what you gain during a divorce. A divorcing couple has rights in that their property is considered community and there are claims to exclusive use of property, spousal support, child support, and even custody. On the contrary, if your marriage is declared void then it is as if the marriage never existed. Therefore, you would not have any rights to anything that was accumulated during the marriage such as children or property.
At least two appellate courts are considering the impact of this law as it stands now. In Tarrant County, a woman named Cori Jo Long is fighting for her right to divorce. She was married out of state and is now seeking a divorce from her partner. She is advocating for a change and it will be interesting to see how the Tarrant County trial court decides this issue. There is some guidance out of San Antonio in which Judge Barbara Nellermoe dismissed the State of Texas as a party to a same-sex divorce suit and is proceeding forward with a hearing to decide certain issues in the case, including custody. Attorney General Greg Abbott will be appealing Judge Nellermoe’s decision to refuse to ban the same-sex divorce. Both cases are just in the beginning stages, so it will be interesting to track the results as the cases progress forward. This could mean a major shift for the same-sex community and family law practitioners alike.