Is Gay Divorce Legal in Texas? - The Houston Family Law Blog

The Houston Family Law Blog

Is Gay Divorce Legal in Texas?

Is gay divorce legal in Texas? The Texas Supreme Court is currently deciding this question, the Associated Press reports.

On Tuesday, the state's High Court heard arguments regarding the issue of gay divorce and whether or not the state could grant divorces to gay couples who were legally married in other states. The plaintiffs, a gay couple from Austin and Dallas, married in Massachusetts a few years ago and later attempted to file for divorce in Texas, but Attorney General Greg Abbott won on appeal blocking a divorce ruling.

What were some issues regarding marriage and divorce raised in this case?

No Full Faith and Credit

According to Abbott, because the state of Texas does not recognize same-sex marriages performed elsewhere, it should also be barred from granting same-sex divorces.

While gay marriage has certainly made strides in the last decade, it is still not recognized in Texas. However, what about gay Texan couples who legally wed in another state and then return to live in Texas -- is their marriage deemed valid?

While the "full faith and credit" clause of the Constitution requires each state to give the same authority and weight of laws of every other state, this unfortunately does not apply to same-sex marriages. The federal Defense of Marriage Act (DOMA) undercuts this policy specifically when it comes to same-sex marriages under Section 2, and unfortunately this provision was not struck down in the U.S. Supreme Court's recent decision.

Marriage, Divorce, and Annulment

The plaintiffs' attorney, however, claims that Texas' gay marriage ban should not bar divorces as well because divorce falls under a different section of Texas family law.

According to the AP, Assistant Attorney General James Blacklock argued before the Texas Supreme Court that the only remedy for gay couples seeking to be divorced in Texas is not to grant a divorce, but instead to void their marriages. However, several justices questioned this proposition.

Voiding, or annulling a marriage, is a different legal standard from divorce, and it carries different family law consequences. On the issue of spousal support, an annulment, unlike a divorce, does not typically award alimony. In addition, allowing gay marriage annulments in Texas could cause confusion among other states, and the patchwork of state marriage laws is already very complex.

The High Court is not expected to rule on the issue of gay divorce for several months, the AP reports.

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