FindLaw KnowledgeBasePublished: 2011-04-22
Texas is one of several states that have amended their constitutions to limit legal recognition of marriage to one man and one woman. Same-sex couples who want to formalize certain aspects of their relationship can explore Texas domestic partnership solutions, including adoption, cohabitation agreements and designation of end-of-life rights. But given that other states have formally recognized gay marriage, many Texans have traveled to places like Iowa and Massachusetts to obtain a legal marriage.
If the spouses decide to part ways, what are their rights under Texas law? One Dallas man’s attempt to divorce his husband has been working its way through the Texas state courts. The petitioner, “J.B.” in court documents, was given the go-ahead to get a Texas divorce by the Dallas County District Court, but Attorney General Greg Abbott appealed and the Court of Appeals of Texas reversed the lower court’s decision. In February, J.B. filed a petition with the Texas Supreme Court seeking further review.
Texas district courts have original jurisdiction over all divorce matters, and either spouse who wants a decision reviewed has a right of appeal to the Court of Appeals. But only a small percentage of Court of Appeals decisions are in turn reviewed by the Texas Supreme Court, which has discretion to revisit a case based on a preliminary assessment of the issues presented.
Same Sex Marriage Appeal Focuses on Equal Protection Rights
J. B.’s petition presents three issues for the court’s consideration based on his argument that the Court of Appeals of Texas misconstrued the law:
- Section 6.204 of the Texas Family Code, which states that marriage between persons of the same sex and civil unions are void in Texas, does not contain jurisdictional language. Therefore, the court erred in finding that the district court did not have jurisdiction to hear J.B.’s case.
- The court was wrong in concluding that section 6.204 does not violate the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.
- The automatic stay created by the state’s interlocutory appeal (that is, an appeal before the case was complete) may have nullified certain court rules regarding the trial court’s entrance of findings of fact and conclusions of law, as well as its ability to amend an order.
Legal commentators and civil rights activists are far more interested in the equal protection issue, which would be the likely basis if J.B. chose to further appeal to the U.S. Supreme Court. But the less exciting procedural issues could very well provide an incentive to explore the lower court’s rationale and the potential for legal errors that need correction.
Divorce Issues Common to Anyone Who Parts Ways With a Spouse or Partner
While the actual dissolution of the marriage of J.B. and H.B. has not gotten beyond the initial stage in Texas, same-sex partners obviously face the same types of concerns as a married woman and man. A Texas divorce lawyer can help a couple craft solutions for resolving child custody disputes, property division disagreements and other relevant issues. With foresight, a well crafted domestic partnership agreement (similar to a prenuptial agreement) can help couples avoid considerable strife if ending the relationship becomes necessary.
Property division often presents the most complex barriers to a smooth parting of ways. An attorney’s diligent investigation and research can help one partner understand the full extent of property such as real estate, securities, business interests and other assets that a couple must contemplate dividing. The important thing for all parties involved is to make sure that both partners’ contributions to their joint prosperity (or a heavy debt load) are fairly recognized and assets or obligations are apportioned accordingly.
A Texas domestic partnership attorney can help you understand how recent legal developments may affect your rights, and how tried and true legal strategies can protect your interests. The value of an initial consultation can pay immediate dividends, and a Texas divorce lawyer’s ongoing counsel can help clients act with confidence.