Raggio Family Law Articles
Gay Divorce in Play in Texas
Update: Feb 2014: A federal Judge in Texas has declared the Texas ban on gay marriage to be unconstitiional. See the RaggioFamilyLaw news Blog for more...
In October, 2009, Judge Tena Callahan, Judge of the 302nd Family District Court of Dallas County, Texas ruled that two gay men, who were legally married in Massachusetts and moved to Texas, were legally entitled to get a divorce in Texas. Her decision was overturned by the Texas Fifth Court on Appeals in 2010.
Judge Callahan based her decision upon the United States Constitution, specifically the Full Faith and credit clause of Article IV, Section 1 that states as follows:
"Full Faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."
This means the couples marriage was entitled to the same respect as a marriage recognized or performed in Texas--that is, given equal protection.
To make her finding that the U.S. Constitution was the supreme "law" applicable to the situation, Judge Callahan ruled that the conflicting provisions of the Texas Constitution were unconstitutional. The Texas Constitution states that a marriage is between a man and a woman.
The Texas Attorney General tried to intervene in the divorce case in Judge Callahan's court to argue that Texas law precluded her from considering a divorce action between two men, but such intervention was denied by Judge Callahan.
But her opinion was overturned by the Appellate Court.
In January 2011, the Texas Third Court of Appeals ruled that a gay couple legally married in another state and who were granted a Texas divorce by a District Court in Austin, Texas, would stay divorced despite the efforts of the Texas Attorney General to overturn that granting of the divorce. That story is here.
The issue as it appears today is:
Does a Texas court have jurisdiction to dissolve the marriage between two men, who were legally married in another state, when the Texas Constitution and laws of the State of Texas do not recognize such a marriage?
Since two Texas Courts of Appeal have come to opposite results, clearly the Texas Supreme Court is next in line to issue its opinion. The issue in Texas and the other States may ultimately decided by the US Supreme Court.
The argument that Texas cannot grant a divorce, deals with the idea that Texas has control over its laws and its citizens; the fact that someone could be issued a hunting license or driver's license in another state does not mean that Texas is obliged to issue such a license to someone when and if they move to Texas. In other words, if you can't get married in Texas, you can't get a divorce in Texas.
Authority for this position includes the 2007 ruling by the Rhode Island Supreme Court that held a lesbian couple (legally married in Massachucetts) could not get a divorce because the Rhode Island statute didn't define them as being married so they couldn't divorce. But no mention was made of the Full Faith and Credit issue. That case's facts are here.
The argument for there being jurisdiction to grant the divorce include the fact that marriage is the status of the parties and is much more pervasive and inclusive than a mere license. Since the status of the Dallas parties seeking a divorce --their marriage--was recognized in Massachusetts, their status must be equally protected and recognized in Texas -- -- at least for purposes of dissolving their marriage status by divorce.
Authority for this position includes the case of Finstuen v Crutcher, a 10th Circuit Court of Appeals (federal court) decision in 2007 holding that:
"Oklahoma's adoption amendment is unconstitutional in its refusal to recognize final adoption orders of other states that permit adoption by same-sex couples."
So we shall wait and see.
Note: Gay and lesbian couples in Texas, to end their relationships here in Texas without the possibility of a divorce of their-legal-in-state-where-married marriage, are relegated to partnership law for the rules to divide their union/ their property. Most often this leads to the "have" partner doing very well at the expense of the "have not" partner. There are many issues that flat out are not addressed in partnership law that are routine and nearly-automatic in a divorce situation. Like the presumption that all property is community property... whereas under partnership law there is only the property owned by either of the partners as their individual property that is scantily-if-at-all subject to the claims of the other partner. Cohabitation agreements can address this perceived inequity in gay/lesbian relationships, whereas it is automatic where there can be a divorce. A BIG difference.