Same-sex couples, who are married in states that allow SSM,and who move to Texas are stuck in something of a legal limbo if they want to separate. Texas courts won’t grant a divorce, because under Texas law they are never married. The couples can’t get divorced out of state, because generally courts only consider divorces for those domiciled in the state (and often, in that county). So these couples are stuck. It creates a host of thorny family law issues, such as unresolved custody disputes, division of asset problems,and other concerns. On the flip side, any ruling here in favor of the couples would force Texas courts to recognize a same-sex marriage, even for the limited purpose of granting a divorce, in conflict with Texas law. It’s hard to find a constitutional ruling in favor of the limited right to divorce, without attacking head-on the constitutional ban against same-sex marriage.
The Texas Supreme Court will hear arguments on this issue in November.
The Texas Supreme Court announced Friday that it will determine whether same-sex couples, legally married in other states, can be granted a divorce in Texas.
The cases, involving couples from Austin and Dallas, will be the first test of Texas’ ban on same-sex marriage since the U.S. Supreme Court determined this summer that marriage laws can be unconstitutional if they relegate legally married same-sex couples to second-class status.
Oral argument will be Nov. 5, and a ruling isn’t expected for months afterward.
Attorney General Greg Abbott argues that Texas law not only limits marriage to opposite-sex couples, it forbids any action — including divorce — that recognizes or validates a same-sex marriage obtained out of state.
Lawyers for the couples, two Austin women and two Dallas men who were married in Massachusetts, say Abbott lacks the authority to intervene in their lives because divorce is a private matter that does not obligate Texas to recognize same-sex marriages performed in another state.
But if Texas can deny same-sex couples the right to divorce, then the state’s ban on gay marriage should be overturned, the couples argue.