First gay divorce hits Texas court

[WillParkinson]

First gay divorce hits Texas court

(Dallas, Texas) A Dallas man who married his longtime partner in Massachusetts is asking a Texas court to grant him a divorce.

It is believed to be the first time that a court in Texas has been asked to grant a divorce stemming from a same-sex marriage, although a court earlier refused to dissolve a civil union that had been obtained by another couple in Vermont. In that case, the judge cited the Texas constitution, which bans same-sex marriage.

The men were married in 2006 in Cambridge, Mass. and then returned to Dallas. They split up last year and a court filing by one of the men this week cites “discord or conflict of personalities.”

The man’s attorney, Peter Schulte, tells the Dallas News that he is uncertain how the court will rule.

http://www.365gay.com/news/first-gay-divorce-hits-texas-court/

[GodlessBiker]

1. How can they be divorced in a state that doesn't recognize that they are married?

[bunnies]

3. My thoughts exactly.

Doesnt seem like theres much for the court to rule on.

[theoldman]

2. Are they going to contest custody of the children?

Do they jointly own property? If none of these things apply, a divorce is meaningless.

[TechBear_Seattle]

4. Not true

They are legally married, regardless of whether or not Texas recognizes it. Until a divorce is granted, neither man may get legally married again.

[YOY]

5. I guess that cowboy figured out "how to quit him."

Sorry folks...just had to.

[TechBear_Seattle]

6. I believe the article got a key fact wrong

As I remember it, the Texas court refused to dissolve the civil union on the grounds that Texas had no laws regarding civil unions and therefore there were no legal guidelines on how to proceed. This, however, is a marriage, and Texas most definitely has laws dealing with how to proceed on divorce. Thus, the court cannot claim lack of jurisdiction or an absense of procedure.

If the court says it cannot process the divorce, then the couple would have very solid and unassailable grounds for bringing this to the US Supreme Court. If the court does proceed, precedent will be set that does recognize same sex marriage. It is a no-win situation for the bigots, and a win-win for the cause of equality.

[Zuiderelle]

7. Exactly how I see it. This is a good thing.

It will be interesting to see how it plays out.

[Ms. Toad]

8. Going to the supreme court now would not be a win.

Ultimately, it should be - but some of the current members of the court cannot see past their own emotional reactions to perform proper legal analysis on this matter.

This situation is a real issue for same gender couples who choose to marry - we're more married than straights, since it is unlikely that we will be able to divorce without at least one member of the couple moving to a jurisdiction that recognizes us as married.

As pointed out above, lack of recognition of a lawful marriage by a local jurisdiction does not dissolve that marriage. Once legally married, the couple is legally married until one member dies or a divorce is granted.

[TechBear_Seattle]

9. The timing is a different matter

One of the chief hang-ups to challenging DOMA has been the assertion in federal courts that there is currently no situation where plaintiffs would have standing to bring suit. This case has a strong potential to create exactly the kind of standing needed.

[Ms. Toad]

10. Nonsense.

There is not, and has not been for some time, any lack of standing to challenging DOMA. I am one of at least tens of thousands who currently have standing to challenge DOMA. Those of us who are in that position, so far, have had the good sense not to bring the challenge with the current Supreme Court composition.

I am legally married (in Canada), the federal DOMA bars federal recognition of my marriage and my state DOMA bars state recognition of my marriage. There are any number of federal or state benefits to which I would be entitled if either the state or federal governments recognized my marriage. As one very specific example - in my case is the state refusal to grant my spouse a legal relationship with our daughter on the sole basis that because we were not married we did not qualify for the stepparent adoption provisions. We subsequently got married, and could go back at any time and challenge the state DOMA regarding recognition of our marriage, as it pertains to access to the stepparent adoption of our daughter.

Any of us could challenge for recognition under the federal or state tax laws. Both federal and state tax laws bar recognition of my marriage. A challenge regarding health insurance is another one many couples could bring - my state (and many others) do not require health insurance companies to provide coverage for "domestic partners" even when coverage for state recognized marriages is provided. Legal recognition of my marriage would give me access to health insurance I currently do not have. Access to spousal benefits under social security is another way - I'm sure some of the (at least) tens of thousands of us who are married are at the age where social security is an issue.

As I said, it has been some time since the lack of someone with standing to bring suit has been an issue - once the first same gender couple residing in any state was legally married there was standing to challenge the federal DOMA. Once the first same gender couple residing in a state that did not recognize an out of state (or out of country) marriage was legally married in another state (or country) there was standing to challenge the state DOMA.

At this point, it is solely a matter of timing - when the timing is right there are plenty of us ready with standing to bring the case. Lambda Legal even has some of our names :)

[TechBear_Seattle]

11. There is no constitutional requirement to recognize out-of-country marriage, however

One of the big constitutional issue come up in the context of the Full Faith And Credit Clause. There is also the matter of the Fourteenth Amendment.

Anyway, I never said that there weren't people with standing, only that the federal courts have (so far) consistently refused to recognize that standing. I would think that a case like this would make it impossible for the federal courts to continue to ignore the matter.

[Ms. Toad]

12. The only specific challenge to DOMA

that I have found that was dismissed for lack of standing was a case in which the couple challenging the statute was not married, therefore not injured (by the court's reasoning), and therefore lacked standing to bring the case.

There is a much stronger case for injury with a couple that is legally married, but that marriage not recognized based on DOMA - a situation that existed for the (at least) tens of thousands of us who are legally married long before this specific divorce came up. Divorce (or the inability to get one) is just one type of injury that is caused by the failure to recognize legally valid marriages.

Edited to add: foreign marriages are recognized by the US under principles of comity.

[readmoreoften]

13. A-HA! Nice moves.