Houston Divorce Lawyer & Attorney : Cavers Law Firm : Texas Family Mediation & Adoption Lawyer

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.

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Texas voters overwhelmingly approved a constitutional amendment prohibiting marriage between individuals of the same sex, and about 43 other states also prohibit same sex marriage. However, nine other states recognize civil unions, and in 2004 Massachusetts approved provisions allowing same sex marriage.

The questions are (1) if same sex partners can marry or enter into civil unions in certain states, how can these marriages and unions be undone; and, (2) what is the impact if the parties relocate to other states? These are not easy questions to answer, as an April 15, 2008 article in The Houston Chronicle noted.

Same sex couples married in Massachusetts are finding that other states will not permit them to seek dissolution. Additionally, couples who later relocated to another state find that if they do not meet the domicile and residency requirements under the Massachusetts family code, the state will not permit dissolution suits to move forward. While this may seem to be an unnecessary road block, the state has a legitimate interest in denying relief to parties who are not domiciled in the state. There are also constitutional considerations – the court can only adjudicate a matter if it has jurisdiction over the parties and issues. According to sources at The Houston Chronicle, to establish domicile in Massachusetts one must reside there for at least 12 months.  

Though same sex marriage and civil unions are hot topics, they recognized by a minority of US jurisdictions. With a highly mobile society, many of couples will find themselves relocating from the states where they entered into the marriage or union, and perhaps seeking assistance under the law to terminate the relationship. It is just a matter of time and parties making a constitutional argument. At some point laws of the various states (Texas included) must address issues of division of property, conservatorship and custody in same sex marriages/unions.

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Last week, the Family Law Prof Blog posted an interesting update on the status of same sex couple adoption in Maine.  I pass this on for those interested in the topic.

The Maine Supreme Judicial Court ruled unanimously today that state law does not preclude unmarried couples from jointly petitioning to adopt a child.  The case involved a lesbian couple who had petitioned to adopt a 10-year-old girl and her 6-year-old brother, for whom the couple had been foster parents since 2001.

The court decided the case solely as a matter of statutory construction, reasoning that if it read the statute to prohibit joint petitions by unmarried persons, the statute would still clearly allow successive petitions by unmarried persons, leading to the same end result.  "With this in mind, construing section 9-301 as prohibiting a joint petition by unmarried persons elevates form over substance to an illogical degree."  In terms of reading the statute to effectuate the purposes of adoption law, the court noted that joint petitions serve the best interests of children in a variety of ways, by insuring continuity of care should one parent die, by enabling access to  broader range of benefits from two parents rather than one, and "Most importantly, a joint adoption affords the adopted children the love, nurturing, and support of not one, but two parents."

Adoption of MA  (Maine Supreme Court August 30, 2007)
Opinion online (last visited August 30, 2007 bgf)

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Though some U.S. states and foreign nations recognize civil unions between same sex couples, Texas is not one of those jurisdictions. In fact, Article I Section 32 of the Texas Constitution prohibits same sex marriages. 

Despite this provision in the Texas constitution, same sex couples form family units and require legal protection just as heterosexual couples. Unfortunately, the Texas Family Code sections dealing with marriage, separate property, community property, spousal support and divorce have no application to same sex couples. Therefore, it is important for same sex couples to create their own protections by expressing their intentions, agreements and expectations in a written contract.  

The answer is found in contract law. Same sex couples may tailor their individual solutions through the formation of an enforceable contract. Such contracts are generally referred to as domestic partnership agreements. A domestic partnership agreement is as unique as the couple it serves, but the agreement should at least address the following: (1) identify the parties to the agreement; (2) identify the property at issue and ownership of that property; (3) contemplate the potential for dissolution of the relationship through a break up; (4) contemplate the death of either party; and, (5) dispute resolution options such as mediation, arbitration, collaborative law, and litigation, if necessary. 

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