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Same Sex Divorce In Texas

Article 1 Section 32 of the Texas Constitution states that “Marriage in this state shall consist only of the union of one man and one woman… this state may not create or recognize any legal status identical or similar to marriage.”  Also, under the Texas Family Code, the Legislature of Texas enacted section 6.204 which states that same-sex marriage and civil unions are void as they are against the public policy of Texas.  This section further states that same-sex marriage and civil unions from other jurisdictions are void as well.  The United States Supreme Court recently ruled that the Defense of Marriage Act was unconstitutional—effectively making same-sex marriage recognized on the federal level.  So if a same-sex married couple gets married in a state that recognizes same-sex marriage, then moves to Texas, how does this couple get divorced?  The couple would be married in the eyes of the federal government (for example in filing an income tax return with the IRS), but would not be married in the eyes of the state of Texas.  Divorce is an issue that is handled on the state level.  State Courts, not Federal Courts, grant divorces.

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So if a member of a same-sex couple who was married in a state that recognizes same-sex marriage wishes to get divorced while living in Texas, what can he or she do?  That is the question that is currently in front of the Supreme Court of Texas.  The Court faces a tricky legal question because granting a divorce in Texas requires the existence of a valid marriage.  If the Court chooses to grant the divorce, then the Court would be acknowledging a valid marriage which violates the Texas Constitution.  On the other hand, if the Court were to deny the divorce, then the same-sex couple would, against their wishes, still be married in the eyes of the federal government and states that recognize same sex marriage.
The same-sex married couples’ options would be file a suit in Texas to declare the marriage void—which tells other states and the federal government that the parties were never validly married (even though they were validly married in the state where their same-sex marriage was granted)—or, establish residency and obtain a divorce in another state.

It could be argued that the same sex married couple could go to a state that recognizes same sex marriage (and divorce) in order to get a divorce.  However, that is not as easy as it sounds.  Most states have strict residency requirements before Courts have authority to hear a divorce suit.  For example, in Texas, one of the parties seeking the divorce must be a domiciliary of the state for at least 6 months before filing for divorce.  Thus, if the Supreme Court of Texas rules that the state courts of Texas cannot grant a divorce for same-sex married couples, then these couples could be forced to establish residency in another state for a substantial amount of time before being able to have a court grant them a divorce.

The trickle-down effect of the Supreme Court of the United States’ ruling that same-sex marriage is essentially recognized under federal law has yet completely play out.  Texas is not the only state facing these difficult legal issues when the state law contradicts (or at least, is inconsistent with) federal law.  The ruling for the case in front of the Supreme Court of Texas is expected in March of 2014.