Portrait of John K Grubb

Texas Divorce and Prenuptial Agreement

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Same sex divorce to be considered in Texas


In a few short weeks on November 5, the Texas Supreme Court will consider whether or not Texas can grant a divorce to same sex couples, even though the state does not recognize same sex marriage.

When Austin couple was granted a divorce in 2010 and a Dallas couple petitioned for a divorce 4 years ago, Texas Attorney General Gregg Abbott appealed both cases. When the Appeals Court ruled that Attorney General Abbot did not have the standing to overturn the divorce granted in the Austin case, Texas appealed the case to the State Supreme Court.

Both couples were legally married by the State of Massachusetts.

Texas is appealing based on that granting a divorce to same sex couples acknowledges that the couple was legally married and validates the relationship even though the Texas Family Code prohibits same sex marriage. The State also contends that the Texas Family Code does not violate the US Constitution.

Briefs filed on behalf of the couples question whether the sections in the Texas Family Code prohibiting same sex marriage also bar same sex divorce. The couples contend that the Family code provides for same sex divorce although Texas does not recognize same sex marriage. The couples also contend that the US Constitution requires a divorce to be granted to same sex couples married in other states.

Both cases have been in the Courts since 2011. The decision to consider whether or not Texas can grant same sex divorce comes after certain provisions in the Defense of Marriage Act (DOMA) were struck down by the US Supreme Court last June as violating the 5th Amendment since DOMA treated heterosexual couples and same sex couples differently.

Justice Anthony Kennedy wrote

“…By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

Texas’ population increased by 4% between 2010 and 2012. The new residents primarily located in the major cities of Houston, Austin, San Antonio, and Dallas. The growth for this year is on its way to adding almost a half million new residents.

With so many people attracted to our state, it is safe to assume that some people will be same sex couples arriving from one of the 13 states that currently recognize same sex marriage. It is also not inconceivable that same sex couples married in other states recognizing such marriages will seek divorce attorneys and file divorce petitions with the Family Courts while residing in Texas.

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