Across the country the
debate about same-sex marriage has heated up and become a very recent focal
point. This blog is neither against nor in support of such marriages.
A married couple moves to the Dallas area from New York, they have two children, two stable well paying careers, buy a home in a suburb of Dallas, blend in with two SUV’s, and generally live the idyllic Dallas area life. But at some point, somehow the marriage breaks, it’s irreparable and the couple starts down the road to divorce. Each obtain legal counsel and explain the marriage, the children, the assets and how they each feel the divorce should proceed. While this couple fit a general picture of a Dallas area divorce case, they are not. This is a same-sex couple.
Texas does not recognize their marriage in New York State. Regardless of political views, personal and moral views, the discrepancy between New York law and Texas law creates a huge legal problem when a same-sex couple decides to divorce. In Texas, marriage is specifically defined as between a man and a woman no less than five times in the State Constitution and Family Code.
So why, if the couple isn’t actually married in Texas must they divorce?
The importance of being allowed a legal divorce is primarily an issue of property and assets. In a divorce the community property which is jointly held and the separate property which is individually held is divided fairly. Each spouse walks away with what a court or their agreement dictate is theirs. The theoretical same-sex couple has both community and separate property but no way to divide and legally end the marriage.
There are some states that will allow a same-sex couple to divorce in that state even if the state does not recognize the marriage to begin with. Currently in Texas, The Texas Supreme Court has two cases for review that address whether Texas should allow same-sex divorce. The Texas Supreme Court may decide that District Courts across Texas can grant divorces to same-sex couples even though same-sex marriages are unconstitutional under the Texas Constitution. However, since the Supreme Court of the United States has recently heard arguments on California’s Proposition 8 and the Defense of Marriage Act, the Texas Supreme Court may wait to accept the cases for review until after the decision of the US Supreme Court is released.
For right now the theoretical couple in Dallas can use mediation and collaborative law to attempt to divide property and assets. In some cases same-sex couples designate their property and assets under a business partnership or joint venture. The business designation allows the Texas Business Code to rule the dissolution of the business. A practical if unfeeling way to end a relationship.
Do you have questions about obtaining a divorce in Dallas County or Collin County? Are you considering what steps to take to begin the divorce process? Give the lawyers at The Wright Firm a call. We practice family law throughout the Dallas area and are here to help! Call us at (972) 353-4600 or visit our website at thewrightlawyers.com.
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