After three years of marriage, a couple petitioned a Texas family court for a divorce in 2009. For most couples in this position, deciding issues of custody, spousal support, and property division are the keys, and those who can work out these matters with the help of a divorce attorney at Bertolino LLP can draft a divorce settlement, dissolve their marriages and move on with their lives.
This couple, however, was not able to do so. Instead, as Slate reports, their divorce case has now made its way through several lower courts, and the Texas Supreme Court will hear arguments on November 5, which will determine whether the couple can end their marriage.
Texas Supreme Court Addresses the Issue of Gay Divorce
This divorce has become a major legal battle because the couple is gay. The two men were married in Massachusetts in 2006, where the laws have allowed same-sex marriage since 2004. The men then moved to Texas, however, where voters approved an amendment to the Texas Constitution and Family Code in 2005 banning same-sex marriages and civil unions. Since gay marriage is not recognized in Texas under this amendment, by extension, the Texas courts also do not have jurisdiction to grant a same-sex divorce.
The men cannot simply go to Massachusetts to end their marriage, nor can they travel to any other state that recognizes same-sex marriages. The problem is that every state has a residency requirement for divorce, which means that at least one of the spouses has to live in that state for a period of time before the court has jurisdiction to grant a divorce.
Since they cannot end their marriage elsewhere, the men have been fighting for several years to have a Texas court dissolve their legal union. A family court judge initially granted the divorce position, arguing that the prohibition on same-sex marriage violated the equal protection and due process clause of the Constitution. This ruling, however, was reversed in 2010 by a three-judge appeals court panel.
The Supreme Court in the state of Texas will now determine if it violates the men’s constitutional rights for Texas not to grant them a divorce. The case is one of two that is pending before the Supreme Court, with the other involving a lesbian couple. It is one of the first of its kind to be heard by a state supreme court, but it is a problem that is likely to arise frequently in the coming months and years since more than 30 states have bans on same-sex marriage either in their constitution or by statute.
The cases are an important reminder to everyone that marriage is not just a romantic partnership but a legal partnership that can be complicated to unwind when the relationship ends. Any couple going through a divorce should seek assistance from an experienced divorce lawyer for help navigating the legal issues.
If you need a divorce attorney in Austin, TX contact Bertolino LLP today at 512-717-5432 for a case consultation.
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