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A federal district judge in Texas rules that Texas’s Constitutional ban on same-sex marriage violated the Equal Protection Clause of the United States Constitution.  That ruling was stayed pending appeal—a common procedure in this type of case (when a law has been ruled unconstitutional, it is common to keep the law in place until the appeals process is exhausted).  This is an important note as the United States Supreme Court rejected a Petition from the state of Alabama to stay same-sex marriage until the issue is resolved by the Supreme Court of the United States.  Many believe this move by the majority of the United States Supreme Court Justices is an indication of how they might ultimately rule on whether individual states can decide whether or not same-sex couples can get married within their state.

The state of Texas still has a Constitutional ban on same-sex marriage; however, in light of the Federal District Court Judge’s ruling that Texas’s Constitutional ban violated the United States Constitution, a Travis County judge ordered the Clerk of Travis County to issue a marriage license to Sarah Goodfriend and Suzanne Bryant.  The Judge issues a “one-time” exception because Ms. Goodfriend has deteriorating health with ovarian cancer.  On Friday, Texas’s Attorney General, Ken Paxton filed a petition with the Texas Supreme Court in order to declare the marriage license issued by the Travis County Clerk to Ms. Goodfriend and Ms. Bryant to be declared void. Continue reading →

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Many have heard the story of Devon Still and his daughter Leah—a four year old in a battle with cancer. Recently, it was reported that Devon Still ex, and mother of Leah, is accusing Mr. Still of failing to pay child support for many months.  The question that many are asking is whether Mr. Still’s financial support for his daughter outside of “child support” would offset his child support obligation.  If this occurred in Texas, what would a Court say?

In Texas, the answer is most likely no, and Mr. Still would be facing jail time for contempt of Court if he failed to pay court-ordered child support.  Hypothetically, Assume that Mr. Still is under an order to pay child support in Texas.  Would he have any defense for his failure to pay (other financial support, medical support, etc.)?  The Texas Family Code has specific defenses for the failure to pay child support.  These include voluntary relinquishment by the obligee (party owed support) to the obligor (party responsible for paying support).  Basically, if the obligee gives the obligor more time than ordered by the Court, the obligor can have a defense to failure to pay child support if he also provided actual support of the child.  In Mr. Still’s case, if he had possession of his daughter full-time due to the fact that her mother voluntarily relinquished their daughter to Mr. Still, then he would have an affirmative defense to the Court’s enforcement of his child support obligation. Continue reading →

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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. Continue reading →