For same-sex couples, getting married is the easy part
In 2004 Massachusetts became the first state to legalize gay marriage, and California was soon to follow. While couples in these jurisdictions have the right to marry, there is the uncomfortable issue of how they go about divorce – especially in Texas with a constitutional amendment prohibiting same sex-marriages. Many same-sex couples establish residency in states where they can marry. Not surprisingly, people relocate, and that may even include coming home to Texas.
Because Texas law recognizes marriage as a union existing between man and woman, the law specifically excludes same-sex marriages. If the parties to a divorce action cannot establish they are legally married, it follows that a family court cannot grant a divorce. Divorce provides a just and right division of community property and may confirm a party’s separate property. Divorce also addresses children’s issues such as parenting plans, custody, and child support.
It is naïve to think that divorce will not be an issue for same-sex couples who reside in jurisdictions that do not recognize their status. At some point, there will be a challenge to the current Texas law, and we can only wait and see what issues are presented, the arguments made, and the ultimate outcome. For now, relief in dividing property owned by same-sex couples in Texas is likely limited to a civil partition suit.
For more information on issues throughout the country, see the recent article from The Chicago Tribune.