Surrogacy is the process of a mother carrying a child for a family who can’t conceive. The process can be a godsend for parents who do not have the option of traditional conception. As surrogacy works in Texas, it involves a life-altering event for at least three parties– the intended parents and the gestational mother. Naturally, it is a delicate process with many emotions and moving parts. Surrogacy can be a great option for many reasons- whether the parents are a same-sex couple, medical issues prevent a mother from carrying a baby, or if either parent is concerned about passing down a genetic disorder or defect. For anyone thinking about growing a family through surrogacy, keep in mind that the legal process is just as essential as the biological process. Continue reading →
The legalization of same-sex marriage may only be a few months old, but Texas’ informal marriage laws may provide for marriage recognition dating back decades. On June 26, 2015 the United States Supreme Court issued its ruling in Obergefell v. Hodges, legalizing same-sex marriage in every state of the Union. Since the rendering of the Court’s ruling, counties across the state of Texas have issued thousands of marriage licenses to same-sex couples. Upon receipt of a marriage license, these couples become eligible to enter into formal marriage. However, Texas also recognizes informal marriage, frequently referred to as common law marriage. Texas allows parties to an informal marriage to hold, as their legal wedding date, the earliest date at which all statutory requirements of an informal marriage were satisfied. What does this mean for same-sex couples who satisfied the statutory requirements before the legalization of same-sex marriage in Texas?
Under the Texas Family Code, an informal marriage may be proved by evidence that: (1) a declaration of marriage has been signed; or (2) by showing that the parties agreed to be married and after the agreement they cohabited together, in Texas, as a married couple, and represented themselves to others, in Texas, to be married. (see Texas Family Code 2.401). Upon satisfaction of the second prong, the couple may file a declaration of marriage and list, as their date of marriage, the earliest date at which all requirements were concurrently satisfied. Of course, same-sex couples are now afforded the ability to enter into informal marriage. The question is, however, will same-sex couples who satisfied all requirements of the law be allowed to declare their marriages to a date prior to June 16, 2015?
Initially, it was believed that state officials would hold that same-sex common law marriages could not be dated before June 26, 2015, as same-sex marriages were void ab initio under the law. However, with respect to a recent declaration of marriage filed by a same-sex couple in Tarrant County, Texas, the Texas Department of State Health Services stated that “Applicants, regardless of gender, may apply for an informal marriage license using any date applicable to their relationship.” Accordingly, this Tarrant County couple was allowed to date their informal marriage to 1992.
Friday, June 26, 2015, was unquestionably a historic day in the realm of family law, constitutional law, and for the country as a whole. On this day, a majority of the Supreme Court of the United States held that the Fourteenth Amendment of the U.S. Constitution requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Justice Kennedy, who delivered the majority opinion of the Court, was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan in this momentous decision. Continue reading →
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 →
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.
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 →
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.