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Texas Divorce Law

Texas Divorce LawMelissa Etheridge has been making headlines with her statement, “I’m for gay divorce.” Although the sentence appears to be against the values of a gay rights advocate, but her recent campaign is fueled by Etheridge’s personal experience. On April 15th, 2010, Etheridge and her partner Tammy Lynn Michaels announced they would be breaking their union. The ensuing division of assets and custody battle cost the gay couple twice the amount of a heterosexual divorce, prompting Etheridge to claim “I’m for gay marriage, because I’m for gay divorce.”

History of Gay Divorce in Texas

Interestingly enough, but not surprisingly, Texas divorce law prohibits homosexual divorce on the basis that the state does not allow homosexual marriage, but only sometimes.

In 2010, H.B. and J.B., formerly married in Massachusetts, attempted to file for divorce in Dallas, Texas. The presiding judge allowed the case, and thus waged war on the Texan prohibition of gay marriage. The case was taken to the 5th Texas Court of Appeals, where the judge’s decision to divorce the gay couple was ruled unlawful since the state of Texas did not even recognize the union. As a result, the homosexual couple could not be divorced.

However, in 2011 a judge in Austin, Texas attempted to take on the ban against gay divorce by granting a divorce to Angelique Naylor and Sabina Daly, who were married in Massachusetts in 2004. After the divorce was granted, Texas Attorney General Greg Abbott filed to have the divorce voided on the grounds of the marriage being void in Texas. This time, the 3rd Texas Court of Appeals ruled that Abbott could not reverse the divorce, simply because it was already granted.

So what is the deal with getting a divorce in Texas? Under the Texas Family Code, same-sex marriage or civil unions are void in Texas law, as well as rights or claims to “any legal protection, benefit, or responsibility asserted as a result of a marriage between persons of the same sex or a civil union in this state or in any other jurisdiction.” A civil union is defined as any relationship that serves as an alternative to marriage (including same-sex relationships and cohabitating persons). The alternative to homosexual divorce is a voidance, which unfortunately does not apply the laws and rights of a divorce (like child custody, annuity, and property settlement).

The Future and Texas Gay Divorce Ban

While Texas tries to find unity and enforcement for the same-sex marriage and divorce ban, Texans and Americans alike are struggling to understand what is lawful and unlawful in the quagmire of the gay question. The end is not yet in sight, especially since same-sex marriage is an individual state matter. Currently, the only certainty in same-sex Texas divorces is that one must be a millionaire to cover the legal representation costs.

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