No gay divorce in Texas

by on August 31, 2010  •  In Marriage

The 5th District Texas Court of Appeals ruled today in In re the Marriage of JB and HB that two gay men who married in Massachusetts cannot obtain a divorce in Texas.

J.B. and H.B. married in Massachusetts in 2006 and filed for a divorce in Texas in January 2009 after moving there. In October of last year, District (trial) Judge Tena Callahan ruled that they could obtain a divorce in Texas, saying that the state’s constitutional amendment banning same-sex marriage violated the U.S. Constitution. Attorney General Greg Abbott appealed, arguing that same-sex couples cannot divorce in Texas because the state doesn’t recognize same-sex marriage. The three-judge appellate court agreed.

The Court of Appeals ruled that the trial judge had abused her discretion in preventing the AG from intervening to defend the state's DoMA (a flip of the situation in California, where a conservative legal group filed a petition for mandamus today seeking to force Gov. Schwarzenegger and AG Brown to defend Prop 8). The Texas court said that the state constitution, as amended, forbids "creat[ing] or recogniz[ing]" any same-sex marriage and that the state's family code also prohibits giving "any effect whatsoever" to a same-sex marriage.  Therefore, the court reasoned, the trial judge lacked jurisdiction to entertain an action for divorce. The court also addressed the constitutional questions, and ruled that the prohibition of same-sex marriage violates neither the Equal Protection clause (it's rationally related to "the goal of promoting the raising of children in households headed by opposite sex couples") nor the Due Process clause (there is no right to "same-sex marriage").

What, you may ask, are these two men to do next?  The court suggests that they can seek a declaration that their marriage is void, i.e. that it was never valid to begin with. (This is an established procedure.) Needless to say, the property distribution and other financial issues will be considerably different if the marriage is declared void than if a divorce decree is entered. The lawyer for the man seeking the divorce had argued that a Texas court could grant a divorce based on an out-of-state marriage without violating the DoMA language because a divorce decree does not consider the validity of the underlying marriage, but the court rejected that assertion.

Welcome to the world of insane variation in divorce law.


One Response to No gay divorce in Texas

  1. JDU September 8, 2010 at 2:45 PM

    I think it would be a good idea for all states to grant divorces to same-sex couples married in other states, regardless of their stance on SSM. I’d like to see SSM legal across the country, but I know that that’s not going to happen soon.

    This would be a step in the right direction, and would probably be economically beneficial.

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