Thursday, March 25, 2010

Same-Sex Divorce in Texas

Laws pertaining to marriage are created and governed by individual states. As a result, laws affecting marriage differ greatly from one state to another. It is precisely this kind of difference that has created difficulties for same-sex couples who get married in one state, but seek divorce in a different state.

Across the United States, same-sex marriage is accepted, or rejected, in varying degrees. Massachusetts, Connecticut, Iowa, Vermont, Maine, and New Hampshire have all come to recognize same-sex marriage. California recognizes the institution for some couples, and other states allow a legalized partnership without the title of “marriage.” Several states, including Texas, have enacted laws or even amended the state constitution in order to refuse recognition of any form of same-sex marriage. Still other states, including Rhode Island and Pennsylvania, have not expressly accepted or rejected same-sex marriage.

What does this mean for same-sex couples who get married in one state and move to a state that does not recognize that marriage? It depends, but it can mean that the couple is treated within that state as if they were not married. In 1996, the United States Congress enacted the Defense of Marriage Act (DOMA), which had two major implications. First, it refused to recognize same-sex marriage on the federal level. Second, it permitted individual states to refuse to recognize same-sex marriages regardless of their validity in other states (up to this time, many same-sex marriage advocates pointed to the “Full Faith and Credit Clause” of the United States Constitution in order to compel one state to recognize a same-sex marriage that was valid in another state).
This has noticeable implications in a state like Texas when a same-sex couple files for divorce. How can a state grant a divorce between two people when it does not recognize them as married? According to one Dallas judge, the answer is by holding that law unconstitutional. In January of 2009, a Dallas man filed for divorce from his same-sex partner three years after they were married in Massachusetts. Despite objection from Texas Attorney General Greg Abbott, the divorce was granted. In the decision, Judge Tena Callahan held that Texas’ refusal to recognize the marriage was in violation of the “Equal Protection Clause” of the Fourteenth Amendment to the United States Constitution. That case is currently being appealed.

In February of 2010, a similar case arose in Travis County where a same-sex couple was granted a divorce. The day after the decision, Attorney General Abbott filed a motion to block the divorce before it was entered into the official record. The outcome of this case is still pending.

Because both of these judicial decisions have been at the trial court level, it is not yet clear what precedential weight they carry. However, if they are any indication of future decisions, we may be approaching an interesting family law jurisprudence in Texas. In other words, marriage may be for a man and a woman, but divorce may be for everyone.

**This article was prepared by Matt Lloyd, and edited by Chloe Love.