Changing Laws of Same-Sex Marriage Leave Divorces in Limbo

The status of same-sex marriage is changing rapidly, with increasing numbers of states legalizing the practice. Texas’ own same-sex marriage ban is in limbo after a federal judge ruled it unconstitutional. Meanwhile, last year’s Supreme Court decision striking down key parts of the federal Defense of Marriage Act helped to improve the legal status of married same-sex couples even in states that don’t yet legally recognize the practice. Still, the legal status of these couples in many states is anything but clear should they decide to divorce.

As this blog has previously noted, there are now at least two cases before Texas courts in which same-sex couples who were legally wed in states where that is legal are seeking a divorce here, where same-sex marriage is not yet legal. Similar cases have come before courts in other states where same-sex marriage is prohibited, with mixed results.

Currently, 17 states and the District of Columbia legally recognize same-sex marriages. Six of these jurisdictions – the District of Columbia, Minnesota, California, Delaware, Hawaii, Illinois and Vermont – have laws allowing same-sex married couples who were wed in the jurisdiction to dissolve their marriage in the jurisdiction even if they have moved to a different state where same-sex marriage is not legalized. One or both halves of a same-sex couples who were married somewhere else may have to return to the state where they were wed in order to be legally divorced. Some states require people to meet lengthy residency requirements before they will administer a divorce. As a result, many people in unhappy marriages feel trapped.

The legal rights that come with legally recognized same-sex divorce are mostly the same as those that come with heterosexual divorce. At the end of a marriage, the parties have rights to equitable property division and spousal support, where necessary. Without legal status for the marriage, the parties may not have these rights should they choose to divorce. Beyond those rights, child custody and child support issues may be especially troubling for the party of a same-sex divorce who is not the biological parent.

While the legal status of same-sex marriage and divorce remains up in the air in Texas, life goes on for people in same-sex relationships. Couples still get together and they still split up. Those who are splitting up need help from Texas attorneys who are keeping up with all the changes in the law and can advise them on their rights.

Source:, “Some same-sex couples ‘wed-locked’,” Hayley Bruce, April 11, 2014

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