Texas Divorce Tips
One divorce attorney's reactions to family law issues.
Thursday, December 17, 2009
Austin Woman Says Her Gay Marriage is Void
I suppose it was bound to happen sooner or later, but it still surprised me to learn this. According to the Dallas Voice blog, a lesbian couple married in Massachusetts in 2004 and adopted a child together. They moved to Texas and one has filed for divorce. The other one is taking the position that gay marriage is not permitted under Texas Law, therefore there can be no divorce in Texas, so let's divide stuff as though we were roommates.
http://www.dallasvoice.com/instant-tea/2009/12/16/austin-woman-contests-wifes-divorce-petition-by-arguing-that-their-marriage-is-illegal/
Of course, this is taking the opposite position of the two men married in Massachusetts, moved to Texas, filed for divorce here, and the trial court judge has ruled that it is unconstitutional for Texas to prevent folks married in another state from pursuing a divorce here. This case is still in the early phases, and it's certain that when this case is over somebody's going to appeal it, and it's in the appellate court system that you get rulings that amount to law.
I guess that in nearly every divorce it would be advantageous to one side or the other to be able to claim that the parties were never married in the first place. If the parties are married, everything they have is presumed to be community property, subject to a "just and right" division, and if you want to claim something isn't community property, the burden of proof is on you to show that you had it before the marriage, or you got it by gift or inheritance.
If there's no marriage, then there's no community property, and you divide stuff like roommates would, including discussions of who actually paid for something, whose name is on the title or receipt, and whether something was a gift to the other.
In this particular gay relationship, whether there's a marriage or not doesn't make much difference regarding the child they adopted. The court would still make the same decisions and on the same basis on parental rights, possession schedule, and child support whether there's a marriage or not. Adoptive parents are legal parents whether they were married or not, and whether they are gay or straight.
http://www.dallasvoice.com/instant-tea/2009/12/16/austin-woman-contests-wifes-divorce-petition-by-arguing-that-their-marriage-is-illegal/
Of course, this is taking the opposite position of the two men married in Massachusetts, moved to Texas, filed for divorce here, and the trial court judge has ruled that it is unconstitutional for Texas to prevent folks married in another state from pursuing a divorce here. This case is still in the early phases, and it's certain that when this case is over somebody's going to appeal it, and it's in the appellate court system that you get rulings that amount to law.
I guess that in nearly every divorce it would be advantageous to one side or the other to be able to claim that the parties were never married in the first place. If the parties are married, everything they have is presumed to be community property, subject to a "just and right" division, and if you want to claim something isn't community property, the burden of proof is on you to show that you had it before the marriage, or you got it by gift or inheritance.
If there's no marriage, then there's no community property, and you divide stuff like roommates would, including discussions of who actually paid for something, whose name is on the title or receipt, and whether something was a gift to the other.
In this particular gay relationship, whether there's a marriage or not doesn't make much difference regarding the child they adopted. The court would still make the same decisions and on the same basis on parental rights, possession schedule, and child support whether there's a marriage or not. Adoptive parents are legal parents whether they were married or not, and whether they are gay or straight.
posted by Hal Davis | 12:58 PM
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