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The Problem of Same Sex Divorce in Texas

How do you un-do something that doesn't exist in the first place? That is the question confronting gay married couples wishing to un-couple in the state of Texas. Under a 2005 amendment to the Texas Constitution, same sex marriage is not recognized in under Texas marriage laws. So what happens when a same sex couple married in another state sues for divorce in the Lone Star State?

Last April, a Dallas judge addressed the question by striking at its root. In In the Matter of Marriage of J.B and H.B., Judge Tena Callahan ruled the Texas law banning same sex marriage violates the Equal Protection Clause of the U.S. Constitution, thus upholding both the marriage and divorce as valid.

As reported by the Austin News, there is one more twist. The opposition to the divorce of an Austin same sex couple is coming not from ever-vigilant Texas AG Greg Abbott (who intervened in the case of J.B. and H.B.), but from one spouse. In the case of Angelique Naylor, her spouse is contesting the divorce by arguing that since the marriage is not valid, neither are the divorce nor the division of assets Naylor seeks. This finding might allow the contesting spouse to keep the lion's share of the house, business and even the child the couple has together. Under Texas law, a married couple seeking divorce would usually divide assets equally under the community property laws of that state.

There is now a patchwork of differing marriage laws across the states. Some states legally recognize same sex marriage but do not allow marriages to be performed (D.C., New York). Some both perform and recognize marriages (Massachusetts, Connecticut, Iowa, and Vermont and New Hampshire as of 2010). Many more do not allow or recognize marriages.

Some legal scholars argue it is this exact state of affairs that the "full faith and credit" clause of the U.S. Constitution was enacted to avoid. Until a decision from the Supreme Court rules on the the constitutionality of the each states' ability to refuse to recognize legal contracts of other states, problems like divorce, Texas style, will increase. As more couples marry in one state and move to states where the marriage is not recognized, what will happen to not only divorce, but actions for domestic violence, custody and adoption?

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