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The Same-Sex Divorce Conundrum

The legalization of same-sex marriage in some states leads inexorably to the problem of same-sex divorce, which is a real legal problem if the couple no longer lives, or never did, in the state where they got married and their current home state does not recognize the marriage to begin with. Such is the nature of a case in Texas.

The problem is that J.B. and H.B. are both men. The other problem is that they live in Texas. The two were married in Massachusetts in 2006, where same-sex marriage has been legal since 2004. They later moved to Texas, and now want to get divorced. Texas, however, won’t let them. And they cannot get divorced in Massachusetts either, because that state—like all states—has a residency requirement for divorce…

J.B. sought a divorce from H.B. in Texas in 2009, and a family court judge granted the petition, holding that Texas’ Proposition 2, which prohibited the court from recognizing a same-sex marriage, violated the due-process and equal-protection guarantees of the Constitution. But in 2010 a three-judge panel of Texas’ appeals court reversed the family court ruling, declaring that because same-sex marriages or civil unions are barred by a 2005 voter-approved amendment to the Texas Constitution and Family Code, Texas courts have no jurisdiction to grant same-sex divorces. Divorcing a same-sex couple would require the state to recognize that they were married in the first place. And this, the state says, it cannot do.

There are several such cases, which are going to reach the Texas Supreme Court in November. The state says they can just declare their marriage “void” rather than get divorced:

Texas counters that J.B. and H.B. are far from trapped in the legal oblivion just described. They have a perfectly valid option: They can ask that their marriage be declared “void.” In other words, the state is willing to declare that their marriage never existed in the first place. Thus while the men wish to check the “divorced” box, the state is offering a chance to check the “never married” box instead. No harm, no foul.

But this is a transparently flawed solution. The fact is that these two men were married. Texas is trying to retroactively declare that a marriage deemed valid in Massachusetts was never real. And while a state’s ability to be hostile and dismissive to the desires of same-sex couples is still under debate throughout this country, a state’s inability to be hostile and dismissive to the legal declarations of other states is a pretty settled matter.

Simply voiding the marriage creates its own problems. The spouses might have had children or accumulated joint property and debt. Extinguishing the marriage from its outset would flush those legal rights down the drain. Children who were born or adopted to such marriages, for example, could find their legal rights vis-à-vis their parents brought into question. A spouse who raised those children while the other worked or went to school, meanwhile, might have no claim to alimony. As one court has put it, retroactively invalidating marriages would “disrupt thousands of actions taken … by same-sex couples, their employers, their creditors, and many others, throwing property rights into disarray, destroying the legal interests and expectations of … couples and their families, and potentially undermining the ability of citizens to plan their lives.”

But even that isn’t the most worrisome problem. Simply voiding a years-long, state-sanctioned marriage forces the couple to pretend that something as significant in their lives as their legal union never occurred. The state’s “attempt to ‘erase’ their lived history,” the ACLU and Lambda Legal brief argues, “is demeaning and demonstrates nothing more than a desire to express public disapproval of their constitutionally-protected intimate relationship.”

So the same people who say gays should never be allowed to get married now says that once they’re married they should never be allowed to leave.

Comments

  1. matty1 says

    I’m only surprised the marriage wasn’t declared void as soon as they crossed the border into Texas.

  2. Baktru says

    At least there’s an out. This btw is just the same as a heterosexual marriage concluded in the Philippines.

  3. zippythepinhead says

    There’s also the question of federal taxes. As everyone knows, tax rates are quite different for married couples and individuals. If such a couple were never divorced and then subsequently filed individual tax returns, they could be accused of tax fraud.

  4. eric says

    Divorcing a same-sex couple would require the state to recognize that they were married in the first place. And this, the state says, it cannot do.

    This seems unnecessarily obtuse. The state could just say that in granting the divorce it isn’t recognizing the validity of the original marriage, just the validity of interstate agreements.

    States have all sorts of different marriage regulations associated with age, relatedness, etc. Presumably Texas is willing to grant divorces for all (other) types of marriages which would not be legal to conduct in Texas.

  5. Ben P says

    This seems unnecessarily obtuse. The state could just say that in granting the divorce it isn’t recognizing the validity of the original marriage, just the validity of interstate agreements.

    Obtuse, but also the law.

    The problem is that divorce, like Marriage, is a creature of statute. The divorce statute probably says, or implies, that in order for the Court to have jurisdiction to grant the divorce, there must be a marriage.

    This is evident from the fact that in order to grant the divorce in the first place, the trial court in texas (which did grant the divorce) had to rule a Texas statute unconstitutional to do so. That gave the avenue for the Texas AG to intervene and defend the statute, which is how the appeal resulted.

  6. ImaginesABeach says

    To be fair, an awful lot of the people that don’t want to allow homosexual couples to divorce in their state are not exactly thrilled about allowing heterosexual people to divorce either. Not much is worse than allowing people to leave their unhappy marriages.

  7. madgastronomer says

    zippythepinhead @4:

    Actually, not a problem, since the federal government didn’t recognize same sex marriages for tax purposes until June. It’s not possible for them to have any past joint tax returns that wouldn’t already be counted as fraud. Since they’re split up now and have been for years, they wouldn’t be filing jointly anyway now. The question is whether they should then be filing as singles or as married-filing-separately from now on, so hopefully they’ll get that straightened out, but that’s unlikely to be handled as a question of fraud either way.

  8. eric says

    Ben P @6:

    The divorce statute probably says, or implies, that in order for the Court to have jurisdiction to grant the divorce, there must be a marriage.

    I still don’t see the problem.

    Let’s say a 14 year old girl marries a 16 year old boy in S.C. That’s legal in SC, as long as they have parental consent. It is not legal in Texas, where both people must be at least 16. They promptly move to Texas and file for divorce. Does Texas have a problem granting divorces in such cases? If not, then how is the legal problem any different here?

  9. beergoggles says

    I think the solution is pretty obvious. Don’t even bother filing for divorce and just apply for a hetero marriage license. According to Texas law they are not married so it’s not like they would be polygamous right? Just give me time to get some popcorn because I want to see Texas law wrap itself up like a pretzel trying to explain that.

  10. eric says

    @11:

    Don’t even bother filing for divorce and just apply for a hetero marriage license.

    Sure, there are amusing ways to manipulate the system. But that doesn’t help the gay couples who are sincerely trying to get divorced, to disassociate property and parental rights, etc. and may be doing so in a non-amicable way.

  11. Chiroptera says

    eric, #5: The state could just say that in granting the divorce it isn’t recognizing the validity of the original marriage, just the validity of interstate agreements.

    Besides the point Ben P made, this assumes that Texans would want to make life humane and livable for its residents.

    Snarling gay couples in a messy legal limbo may be considered a feature not a bug.

  12. Chiroptera says

    beergoggles, #11:

    The problem isn’t just one where the couples are simply not married. They evidently already have that under Texas law. The problem is to get the state to recognize things like custody agreements and child support and alimony and the like.

  13. abb3w says

    @10, eric:

    Does Texas have a problem granting divorces in such cases?

    How they handle divorce between married cousins might also be illuminating, as that is similarly banned under Texas law.

  14. steve84 says

    You can be almost certain that any state would grant a divorce in any other marriage situation that they don’t recognize.

  15. Ryan Jean says

    “So the same people who say gays should never be allowed to get married now says that once they’re married they should never be allowed to leave.”

    No, not at all. They’re saying that they’re only allowed to leave in a manner that does as much harm as possible to the couple. Malice is a motivator here, too, and as someone else noticed, it’s not a bug but a feature that same-sex couples would get hurt by this.

  16. Sastra says

    Gee, maybe the State of Texas could get into granting marital annulments — like the Catholic Church.

  17. beergoggles says

    Eric, #12 & Chiroptera, #14

    That’s the whole point. I can’t see Texas going along and granting out-of-state married gay people hetero marriage licenses. Or even if they do, not prosecuting them for polygamy. And the moment their licenses are denied or they are prosecuted for polygamy, they are recognizing their out-of-state marriage and as such the couples will then be able to claim all the legal benefits of their out-of-state marriage.

  18. eric says

    I can’t see Texas going along and granting out-of-state married gay people hetero marriage licenses.

    Why not? There is a not-so-subtle subtext to all of the anti-gay bigotry that runs: “if we deny them the ability to marry each other, they’ll get married to people of the opposite sex and give up this gay thing.” If gays start opposite-sex-marrying, that’s going to be seen by the bigots as a good thing – as a win, even if the marriages are sham marriages. Moreover, you’re not thinking evil enough. If someone gets hetero-married and is sleeping with a gay partner on the side, conservatives won’t recognize gay marriage as a response: they’ll criminalize adultery. Its already a crime in 23 states, and SCOTUS has never ruled such laws to be unconstitutional, so it would be trivially easy for a conservative state to just up the penalties and start jailing gay people who do what you suggest.

    But all of that is beside the main point, which I already mentioned: yes, sure, its very easy for liberal law-testers to come up with nasty test cases. And if you don’t care who you get hooked to, you can go do this. But a real couple in the break up of a real marriage isn’t going to want to go through that crap. And they shouldn’t have to; its manifestly unfair to them. Your “pretty obvious” solution requires real people to go through convoluted, long, court battles with unknown risks to their custody or financial situation, just to get a divorce. That is not a solution as far as I’m concerned, let alone an obvious one. What you’ve described is a way the ACLU or someone could build a test case. Its not a reasonable way of getting a divorce.

  19. says

    eric, this is America. This country was founded on not doing things the reasonable way*. Unpopular Minorities have to work their way up one agonizing step at a time, readying and embittering them for when they join the Popular Majority and finally have the chance to bitterly step on whatever Unpopular Minority is working their way up behind them. Just as the Founding Fathers intended.

    * The American colonies left Britain by way of revolution. Do you know how Canada left Britain? They asked. I rest my case.

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