State Courts Address Complex Gay Divorce Issues

In New York and in Texas, state courts have recently issued controversial rulings arising in gay divorces — one positive, and the other decidedly negative. In the Texas Court of Appeals decision, the court ruled that a couple that had married in Massachusetts and then moved to Texas could not get a divorce in Texas, on the grounds that granting a divorce would, ironically, “give legal effect” to the marriage. In other words, if they don’t think the marriage is valid, they can’t end it! One would think that the hostile court would love to help this couple break up, but no, that would be too dignified. The court overturned the trial court decision, which had granted the divorce and even had gone so far as to rule the Texas marriage ban as unconstitutional.

Unless the Texas Supreme Court reverses the appellate court’s decision, couples in Texas that married elsewhere will have to move to a marriage recognition state (or at least one of them will have to do so) in order to end their marriage. Hopefully the couple can resolve any outstanding financial disputes, as that will make the dissolution process go more smoothly.

Unfortunately Texas is not alone in ruling this way. For this reason, we strongly encourage couples living in non-recognition state to postpone getting married, but instead, take care of their financial and estate planning tasks as an unmarried couple. Not being able to get a divorce can be terribly burdensome on a couple if things go awry, and will prevent either partner from re-marrying until the divorce can be processed.

In New York, by contrast, an enlightened trial court upheld the validity of a paternity judgment from California in a dispute between two men whose relationship had ended, finding that both men were legal parents. The court validated the parentage status of a gay man who had arranged for a surrogate to carry the couple’s child in California, and the man was deemed to be a legal parent of the child — even though the surrogate parenting contract was considered to be against the public policy of the state of New York. What counted here is that the judgment in California was valid — and thus would be honored in New York state.