Family Law

Were marriages in Texas after 2005 legal?

By Robert M. Kisselburgh, Esq.

Marriages in Texas since 2005 may not be legal

Texas may have itself a big problem. In 2005, it approved a constitutional amendment banning gay marriages. Under the amendment, it states in the first part:

Marriage in this state shall consist only of the union of one man and one woman.

That portion is not the problem. The problem is the second part of the amendment which says:

This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

That's a big problem. If the state does not recognize any "legal status identical or similar to marriage", then how can it recognize a marriage? The Democratic candidate for Attorney General in Texas, Barbara Radnofsky, says the amendment endangers the legal status of all marriage as it "eliminates marriage in Texas" including common-law marriages.

You can be assured this issue will be raised in a divorce proceeding for a couple married in Texas after the amendment went into effect. If the parties were not legally married, due to the constitutional amendment, then no divorce is needed. However, a major problem arises given Texas is a community property state. In Texas, all property acquired during the marriage is presumed to be community unless otherwise proven. So, a couple married after 2005 in Texas and seeking a divorce could argue that there is no community property. No marriage equals no community property. So, the spouses only have separate property and one spouse loses out to the wealthier spouse. Then there is the issue of alimony.

It should be interesting to see how this issue is resolved, but the folks who drafted this constitutional amendment really should have seen this argument arising and done a better job of drafting the amendment.

Source: Fort Worth Star Telegram

Reported by: Robert Kisselburgh, Mississippi Divorce Lawyer

Full post as published by Mississippi Family Law Blog on November 19, 2009 (boomark / email).