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Recognizing Same-Sex Marriage in the Divorce Context

The State of Texas will not grant a marriage license to same-sex applicants, but can the State of Texas grant a divorce to spouses of the same sex who were married in a state where same-sex marriage is legal? On November 5, 2013, the Supreme Court of Texas heard this issue, and a decision is currently pending. The Supreme Court matter involves couples from Austin and Dallas who married in Massachusetts and eventually filed for divorce in Texas.  Both couples obtained divorces from the State of Texas at the District Court level; however, the Office of the Attorney General intervened in the case of the Dallas couple and won a decision from the Court of Appeals for the 5th District of Texas, which overturned the order of the 302nd Judicial District Court of Texas granting the divorce.  The Office of the Attorney General has argued that there can be no granting of a same-sex divorce in the State of Texas since the State of Texas does not recognize same-sex marriage.  The Texas Family Code provides that a marriage between persons of the same sex or a civil union is contrary to the state’s public policy and is void.  The Texas Family Code further states that the State of Texas may not give effect to a public act, record, or judicial proceeding that creates, recognizes or validates a marriage between persons of the same sex in any other jurisdiction—meaning that the State of Texas can recognize neither a same-sex marriage from another state nor a same-sex divorce from another state.

The same-sex marriage and divorce dilemma is appearing and being heard in other states that do not currently recognize same-sex marriage, including Mississippi and Kentucky. Since same-sex marriage is currently legal in only 16 states, this nationwide problem is not likely to disappear anytime soon.  Same-sex couples who are married in a state where same-sex marriage is legal and then move to one of the 34 states that do not recognize same-sex marriage are the victims of this problem.  For these same-sex couples to obtain a divorce, they oftentimes need to move back to the state where they were married or to a state that recognizes same-sex marriage in order to establish the residency and domiciliary status that is necessary to obtain a divorce from those jurisdictions.  The process of going through a divorce can be painful, and that pain only exacerbates if a spouse is required to relocate to a different state just to be able to exit an irreconcilable relationship.

The problem expands even further when considering that an inability to divorce in some cases means that an estranged spouse can be entitled to receive spousal benefits after the couple is no longer living together or holding themselves out as married. To make matters worse, even if a divorce is obtained in a state where same-sex marriage is legal, the marital property can remain in abeyance afterwards if the state where the property is located does not recognize same-sex marriage.  These issues are complicated, and they require examination from not only our judicial branch of government but also our state legislatures.