Texas, until recently, was one of many states that defined marriage as between a man and a woman and did not recognize marriages among homosexual couples. This created a difficult situation for lesbians or gay men who went to another state to marry but who lived in Texas. A couple must divorce in the state where they live as a result of residency requirements in each state's family code. Texas did not recognize out-of-state gay marriages, so couples who lived in the state but wanted to divorce had few options. Texas family courts would not hear their divorce cases because they did not view the marriage as legally valid and other states would not hear the case unless or until at least one spouse established residency.
This changed when the Supreme Court issued a recent ruling legalizing gay marriage throughout the United States. The court determined states could not deny the rights and benefits of marriage to people based on their sexual orientation and that gays and lesbians had a right to marriage throughout the country. Following this ruling, Texas and other locations must recognize gay marriage. This, in turn, likely means gay and lesbian couples who live in Texas but who legally married elsewhere can get a divorce in Texas family courts.
Gay Marriage Ruling Opens Up the Door to Gay Divorces
KHOU reports the first same-sex divorce was already underway in Texas with the Supreme Court ruling legalizing gay marriage still less than a week old. The petition for divorce was filed by a woman who had married her female partner five years ago in Washington, D.C., and who had been trying to get divorced in Texas since 2013. The woman wanted custody rights to her daughter, who was conceived via artificial insemination during the course of the marriage. Without the ability to file for divorce, however, the process of asserting custody rights was impossible.
The couple had separated by the time the child was six months old, and since Texas did not recognize the couple's marriage, only the mother who gave birth to the child had a legal claim. The child's other mother realized quickly how precarious her position was when she tried to take her daughter to dinner and received a telephone call from a law enforcement officer who told her she had to get the child back home immediately or face kidnapping charges.
Because the couple can now divorce, the non-biological mother of the child can make her claim and argue for shared custody. The recognition of gay marriage will extend the legal protections afforded to children of heterosexual parents to children of homosexual parents.
While the courts in Texas will need to move forward with same sex divorces, it is likely laws will evolve over the next several years regarding issues of custody, property, and asset division. Since Texas is a community property state, difficult questions may also arise in gay divorces about when a marriage will be officially recognized as valid for determining what property is shared.
Couples navigating the new frontier of gay divorce should ensure they are represented by a qualified legal professional who can help them through uncharted territory as they take advantage of family court protections for divorcees for the first time.