Texas Must Allow Married Same-Sex Couples to Divorce

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September 4, 2013

Lambda Legal and the ACLU of Texas have filed a friend-of-the-court brief asking the Texas Supreme Court to overturn a ruling from the Fifth District Court of Appeals and allow two married same-sex couples to get divorced.

“These two couples are not asking Texas to marry them or to continue living in Texas as a married couple so that they can access the ongoing benefits and obligations Texas grants other legally-married couples,” said Lambda Legal Staff Attorney Paul Castillo. “In fact, quite the opposite: the issue here is divorce, not marriage, and it is particularly ironic Texas would deny couples the opportunity to dissolve their marriages through the orderly process of divorce, essentially insisting they stay married while at the same time disdaining those marriages.”

Lambda Legal and the ACLU of Texas filed the amicus brief in In the Matter of the Marriage of J.B. and H.B.  J.B. and H.B. are a same-sex couple who were legally married in Massachusetts in September 2006. In 2008, the couple moved to Texas and established residence in Dallas County. They eventually stopped living together in November 2008 and following the six-month residency requirement, J.B. filed an uncontested petition for divorce. The brief also addresses the related case of State v. Naylor, involving another married same-sex couple, Naylor and Daly, residents of Travis County, who were married in Massachusetts in September 2004 and soon after adopted a child. In December 2009, Naylor filed for divorce.

In both cases, the State claims that the Texas Constitution and Family Code prohibit it from exercising jurisdiction because divorce is available only “on the petition of either party to a marriage.” Because of the Texas Marriage Exclusions, including both statutory restrictions and an amendment to the state constitution, the State claims that same-sex couples cannot get divorced, even though the Marriage Exclusions don’t mention divorce. Instead, the State tells married same-sex couples that they only can have their marriages declared void – as if they never existed.

In their brief, Lambda Legal and the ACLU of Texas argue that forcing legally married same-sex couples to deny they were ever married is discriminatory, would impose significant emotional and financial harm and amounts to forcing them to erase their lived history together.  Moreover, as Texas is the only jurisdiction in which these couples can get a divorce, denying them access to the courts for purposes of securing an orderly and legal divorce illegally keeps these couples locked in a legal status against their will.

“Withholding divorce is a particularly harsh and punitive action for married couples that have made the difficult decision to end their relationship,” Castillo added.  “And granting a divorce to same-sex couples does not require that Texas affirm or approve of the marriage.  It merely provides for orderly dissolution of the couples’ ongoing obligations and responsibilities while providing legal certainty that these couples can now move on with their lives.”

Read the press release.