Thursday, January 07, 2010

Same sex divorce in Texas?

In the last couple of months, I have seen an increase in my practice of same sex couples inquiring about gay divorce here in Texas as a direct result of the ruling by Dallas Judge Tena Callahan that a gay male couple who had filed for divorce would get their divorce — AND that the Texas (gay) marriage ban is unconstitutional.

The Dallas couple were legally married while living in Massachusetts and filed for divorce in Texas a year ago. This is a landmark decision because Texas "does not recognize" same sex marriage and in fact actually passed an amendment to the Texas constitution to ban gay marriage. Judge Callahan's decision "to end the marriage" has drawn fire from the Texas Attorney General and Governor Perry who would both like to make the issue about "marriage". It's not about "marriage", it's about divorce, the end of a marriage. This is an issue that must be addressed and decided as more and more states begin recognizing same sex marriage. Why? Because this is a transient society in which more and more legally married same sex couples are relocating to states that do not recognize their marriage. The legal question becomes how does one get a divorce when jurisdiction of that divorce is based on your residency? Here in Texas, you must be a resident of Texas for six months and resident of the county you're filing in for 90 days. It doesn't matter WHAT STATE you were married in.

The Attorney General argued that the Dallas couple should not have filed in Texas. If they hadn't filed in Texas, one of them would have had to move BACK to Massachusetts or another state that recognizes same sex marriage, acquire residency based on that state's divorce laws, and then file for divorce. Most would agree that's a ridiculous course of action and it's just not practical. It presents a whole host of jurisdictional and property issues. Community property v. separate property. Which spouse is going to move to Massachusetts? And, to do nothing would mean that neither spouse could remarry until the divorce was granted somewhere.

Stay tuned because this case is far from over. The AG is appealing and more couples will be filing. Read more.