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Will same-sex divorce be permitted in Texas?

Back in 2005, 76 percent of voters approved amendments to the Texas Constitution and the Texas Family Code banning same-sex marriage. Since that time, however, the legal landscape has changed considerably on this issue thanks to two influential decisions by the Supreme Court of the United States.

One case in particular that has introduced significant change is U.S. v. Windsor, a case in which SCOTUS held that marriage laws like we have here in Texas can be considered unconstitutional if they serve to treat legally married same-sex couples as second-class citizens.

In particular, the Supreme Court ruled in Windsor that a section of the Defense of Marriage Act was unconstitutional due to its classification of "a subset of state-sanctioned marriages" as otherwise unequal and its placement of legally married same-sex couples "in an unstable position of being in a second-tier marriage."

It is against this evolving legal backdrop that the Supreme Court of Texas has now been called upon to decide whether two same-sex couples who were legally married in the state of Massachusetts can divorce here in the Lone Star State.

Arguments over the matter were heard by the court earlier this week, with the Texas Attorney General's Office arguing that to allow same-sex couples to divorce would violate the state's prohibition against same-sex marriage, as it would essentially serve to recognize that a legal marriage had taken place in the first place.

The AG's office also argued that while same-sex couples could not legally divorce in Texas, they could still ask a family court judge to declare their marriage void, which would function as a legal separation.

The attorney representing the two same-sex couples seeking a divorce, however, countered that declaring a marriage void was the functional equivalent of declaring that it never existed, a conclusion that would be contradicted by the fact that the state where the marriage originally occurred recognizes its legal existence.

The crux of his argument before the eight assembled Texas Supreme Court justices was that the court does not need to recognize same-sex marriage in order to allow same-sex divorce.

"Marriage and divorce are separate and opposite from each other," said the attorney. "None of that has anything to do with divorce. That all relates to marriage."

Interestingly, the attorney went on to argue that if the state's law prohibiting same-sex marriages is invoked to deny the two petitioning couples a divorce, it could present certain constitutional issues given the recent decision by SCOTUS in Windsor.

"Forcing a targeted group of citizens into a separate and unequal court procedure is never constitutional, and that's what happens here," he said.

Given that the Texas Supreme Court is not subject to any deadlines, it could be several months before a final decision is reached. Stay tuned for developments.

If you would like to learn more about divorce or other family law issues here in Texas, consider speaking with a dedicated and determined legal professional.

Source: The Austin American-Statesman, "Texas court takes on same-sex divorce," Chuck Lindell, Nov. 5, 2013

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