5th Circuit -- no gay divorce in Texas

We talked about this case last April -- see Can a married gay couple get a divorce in a state that doesn't recognize gay marriage?

Yesterday, August 31, the 5th Circuit Court of Appeals said "no," at least in Texas.  See Texas Tribune.

J.B. and H.B. got married in Massachusetts in 2006, and moved to Texas in 2008.  While in Texas they ceased living together as "husband and husband" and J.B. filed for divorce.

The 5th Circuit ruled that under the Texas Family Code and a 2005 Texas Constitutional amendment a Texas state court could not grant a divorce to a same sex couple. Under the Texas Family Code a couple could normally seek divorce, annulment, or voidance. In this case, J.B. should have sued for a declaration of voidness. See ruling PDF.

Comments

[Notre Dame]

I had a great time reading your article and I found it interesting. This is such a beautiful topic that my friends are talking about. Thanks
for this blog, we are enlightened.

[Michael Ejercito]

The Texas 5th Circuit had also ruled that the due process and equal protection clauses of the 14th Amendment do not require the state to offer divorce to same-sex couples married in other jurisdictions if divorce is offered to couples married under state law.

I can understand why J.B. and H.B. wanted a divorce instead of a voidance; they cited substantive legal differences (divorce is not merely voidance by another name) and the state did not dispute that such differences exist.

[Geo]

Thanks for expanding on that, Michael. The substantive legal differences could probably be summed up with "show me the money."

Same sex couples contemplating marriage should probably get a property contract along with the wedding ring.

[SFJD]

I personally support the right to same-sex marriage, but I'm a realist: I know that it will likely be a long, long time before the majority of states have decided to recognize same-sex marriages.

However, it would be in everybody's interest for all states to grant divorces to same-sex couples married in other states.

From a purely economic perspective, letting same-sex couples divorce and move on with their lives would allow the individuals involved to pursue their careers with fewer distractions, and it would allow them to split up any jointly-owned property in an orderly fashion, which would, in turn, lead to them making productive use of it, or sell it. That has to be more economically efficient than tying the property up in a few years of legal disputes.

[Geo]

SFJD, your suggestion has a solid common sense ring to it.

In the meantime, gay rights groups should encourage couples to look into prenuptial contracts to avoid this sort of outcome.