Same Sex Divorce in Texas: Appellate Court Says No

December 09, 2010

The issue of extending marriage to lesbians and gays has ignited recurring controversy across the U.S. over the past decade. As some state legislatures enact civil union laws and courts extend rights based on same-sex couples' rights to equal protection, activist groups promote constitutional amendments opposing any redefinition of marriage and mount campaigns to defeat individual so-called "activist" judges.

A recent Texas case weighs in on an important and interesting issue: can Texas couples who obtained legal recognition of their relationship in other states pursue a divorce under the Texas Family Code? The Court of Appeals of Texas recently reversed a Dallas County District Court's decision to consider this matter.

The divorce petition was filed in Dallas County by one of two men who were married in Massachusetts in 2006 and moved to Texas two years later. The petitioner was seeking to reestablish his former last name and achieve division of community property through the divorce process. Soon after he filed suit, the state intervened to dismiss the action.

The state contended that the petitioner was not married under Texas law and a divorce could not be granted without violating section 6.204 of the Texas Family Code, which provides that "marriage between persons of the same sex or a civil union is contrary to the public policy of this state and is void in this state." In addition, article I, section 32(a) of the Texas Constitution, adopted in 2005, declares that marriage "shall consist only of the union of one man and one woman" and the state "may not create or recognize any legal status identical or similar to marriage."

The trial court rejected the state's motion for dismissal, and in a preliminary order concluded that Texas law was at odds with the U.S. Constitution. The state immediately appealed. In reaching its decision, the three-judge appellate panel held that Texas state courts have no jurisdiction to adjudicate divorces between same-sex couples and concluded that section 6.204 did not violate the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.

Exploring Your Legal Options With a Family Law Attorney

Same-sex couples in Texas do have legal options when it comes to formalizing certain aspects of their relationships. Domestic partnerships are one option for unmarried couples of the same or opposite sex who seek the stability of the same financial and nonfinancial benefits that the Texas Family Code grants to married couples.

A consultation with a lawyer who understands all legal aspects of cohabitation -- from adoption, property division and child support to estate planning, probate and end-of-life decisions -- can provide real solutions while formal recognition of a relationship remains elusive.

Article provided by Law Offices of Ralph E. Williamson
Visit us at www.ralphewilliamson.com