In recent years, states such as Massachusetts, Minnesota and others have legalized same-sex marriage. Now some jurisdictions, including Texas, where same-sex marriage is not recognized by state law, are attempting to determine the best way to handle same-sex divorce. Recently, the Texas Supreme Court announced it would consider cases regarding not only the divorce of legally married same-sex couples, but also the legality of the state’s laws on marriage equality.
In early November, the Texas Supreme Court will hear arguments in two cases brought by same-sex couples. In both cases, the couples, who were married legally in Massachusetts, now seek to divorce in Texas. The Texas Attorney General’s Office has intervened in both cases, which many believe will provide essential guidance on how to deal with same-sex couples under the Texas family code.
Although the cases arise under similar facts, each couple is presenting slightly different arguments. In the first case, brought by a couple from Austin, the couple argues that the state is required to grant a divorce under both the Texas family code and the U.S. Constitution, even though Texas state law does not recognize their marriage. Granting a divorce, the Texas Attorney General argues, would require the state to recognize the couple’s marriage in a way the law does not allow.
In the second case, brought by a couple from Houston, the questions presented are slightly more broad. Specifically, the plaintiffs are seeking decisions about whether the Texas family code is consistent with the U.S. Constitution and whether the state ban on same-sex marriage constitutes a ban on same-sex divorce.
Currently, it is unclear what the decisions of the Texas Supreme Court are likely to be. More than anything else, these upcoming decisions reflect the changing landscape of family law in the U.S. As of now, just over a quarter of the U.S. population lives in jurisdictions that have legalized same-sex marriage. As one of the fastest growing states in the U.S., it is important for Texas law to articulate its approach to these sorts of issues. Indeed, questions regarding same-sex marriage and divorce are likely to become more common throughout the country.
Although same-sex couples considering filing for divorce have many of the same concerns as all other couples, the current state of the law in Texas and other jurisdictions means that they face unique challenges. For more information, consider speaking with an experienced family law attorney.