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No Same Sex Marriage in Texas, but What about Divorce?

Yesterday, a Dallas man filed what is believed to be the first same sex divorce petition in Texas. The couple was married in Massachusetts in 2006, but now lives in Texas. The case poses a question to the Texas court which has become increasingly common: will states that don't recognize gay marriage allow same sex divorces? If not, how can these couples legally split if they no longer live where they were married?

Like many states, Texas law does not recognize same sex marriage rights. Texas' constitution defines marriage as being only between one man and one woman.

Like most, if not all states, Massachusetts has a residency requirement for getting a divorce. Typically, if you move to a new state and later decide to divorce, you don't have to move back to the state where you married. This is because you can get a divorce through the courts of your new state. But, what if the marriage you want to end is to someone of the same gender?

As attorney Peter Schulte told the Dallas Voice, yesterday he filed his client's petition for divorce in a Dallas County District Court. The question that court now faces has already been put to courts in New York, Rhode Island and Oklahoma.

In New York, where courts have recognized same sex marriages from places where they are legal, divorce was granted to a lesbian couple who had married in Canada, and jurisdiction has been granted to decide a divorce case involving a Massachusetts same sex marriage.

In Rhode Island, the state?s Supreme Court decided that Rhode Island courts cannot grant divorces to end same sex marriages from other states.

In Oklahoma, a Tulsa judge granted divorce to a lesbian couple without being aware of it. After learning that both members of the couple were women, the judge vacated his divorce decree. His decision was upheld by Oklahoma?s Supreme Court and in a subsequent hearing another Tulsa judge also refused the divorce.

In 2003, Texas faced a similar question regarding the end of civil unions from other states. Initially, a Beaumont judge granted divorce to end a civil union which originated in Vermont. The judge vacated his decision, however, after the Texas Attorney General requested that the court deny the divorce. The state argued in part that Texas courts could not grant a divorce because the couple was not married under Texas or Vermont law.

Now, Texas has a divorce petition where the couple is married under another state's laws. Should Texas courts decide they cannot grant same sex divorces, this couple will face the same legal limbo faced by a growing number of people in civil unions, domestic partnerships and same-sex marriages: how can you legally end it if you've moved?

• Washington Post: Same Sex Divorce Challenges the Legal System
• LA Times: The Next Same Sex Challenge: Divorce
• The Virginia Supreme Court Enforces Vermont's Custody and Visitation Order Regarding a Same-Sex Couple's Child: Why an Anti-Same-Sex-Marriage State Recognized a Same-Sex Union for This Purpose (FindLaw?s Writ)
• Same Sex Couples (FindLaw)
• Collaborative Divorce (provided by David Litman, P.C.)
• Understanding the Divorce Process (FindLaw)
• State Laws on Divorce and Child Custody (FindLaw)

Full post as published by FindLaw's Common Law on January 22, 2009 (boomark / email).