THE BLOG
05/20/2010 05:55 pm ET Updated May 25, 2011

Why Won't Texas Grant a Divorce to a Same-Sex Couple?

I recently stumbled upon a new book called Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnerships & Civil Unions, by Frederick Hertz and Emily Doskow. Because I live in Texas, I was especially interested in what the author might have to say about the Lone Star State's recent refusal to grant a divorce to a same-sex couple. So, I decided to interview him, I and wanted to share what I discovered.

Block: A number of judges in Texas (and in other states as well) have refused to grant a divorce to same-sex couples that married in other states. What is the problem here?

Hertz: There are two sorts of problems here. First, each state has laws that require a minimum duration of residency to obtain a divorce in that state, and second, in many "non-recognition" states granting a divorce is seen as a form of "recognition" of the legal relationship. The primary challenge in the Texas cases involves local residents, and so it deals with the second issue -- as there are judges that are saying their local rules don't allow them to deal with a same-sex marriage -- and so they don't want anything to do with a same-sex marriage, and are refusing to grant a divorce.

Block: Are the judges right in doing what they are doing?

Hertz: It is quite possible that under a narrow reading of their state law -- which is a very bigoted state law -- they are acting correctly, from a technical standpoint. In part that depends on whether the couple is simply asking for a ruling that their marriage has ended, or whether either spouse is seeking some form of award (such as a property allocation or alimony or parentage decree). If either of them is asking for a substantive award, then the judge may be acting properly -- but if all they want is a ruling that their marriage is over, I believe that the judge could be more flexible, even with an anti-gay marriage "DOMA" law on the books of that state. He or she could say that under local law the marriage is not valid, but could also go on to say that the marriage that was entered into in another state has been terminated, legally.

Block: What other options are available to these couples?

Hertz: Many lawyers have suggested that instead of asking for a divorce as a standard family court proceeding, the couples should instead ask a civil court judge to rule that the marriage is of no legal consequences, or that it can be annulled as not being legally valid under the law of the residents' state. This would be a way to grant the relief that the couple wants, without having to "honor" the marriage as valid. Of course, this approach will only work if neither spouse is seeking any property or monetary award.

Block: Why can't one of the partners just file for divorce in the state where they got married?

Hertz: For over a century each state has had minimum residency rules, to prevent someone living in a state that imposes strict burdens on divorcing couples from just traveling to another state and get a divorce there. If, for example, California requires a splitting of an asset between the spouses, such as a house, it would be unfair if one of them could just file for the divorce in another state that didn't impose those rules. In some states a year of residency is required, and in other states it is six months -- but you can't just mail in your forms or go visit for a month or two to get a divorce.

Block: Do straight couples have these sorts of problems?

Hertz: No. One of the benefits of being in a straight marriage is that every state recognizes the marriages entered into another state, so straight couples don't have to worry about this sort of problem. They are free to travel from state to state or country to country, and can have their marital conflicts resolved by the local courts regardless of where they were married.

Block: So what is wrong with simply staying married to your ex?

Hertz: I've often said that the one thing that is worse than not being able to get married is not being able to get divorced! Keep in mind that while the state you live in may not recognize your marriage at this time, either spouse may relocate to a state that does recognize the marriage, and then it is possible that some marital obligations (like joint liability for debts) could attach to your relationship. And, until you dissolve your present marriage or civil union, it would be bigamous for you to try to marry or register with someone else - and thus you could be prevented from legally re-partnering with a new beloved.

Block: What about domestic partnership registration?

Hertz: Each state has its own rules. California's legislature wisely anticipated this problem, and if a couple registers as domestic partners there (which invokes all marital rights under state law) they can dissolve their partnership in the California courts even if they live elsewhere. It isn't legally clear if the California court will make a property or alimony award to a non-Californian, but at least the legal relationship can be terminated -- which frees the partners up to re-partner with a new lover.

Block: What is the hardest aspect of this "no divorce" situation?

Hertz: Besides the practical problems of not being able to legally separate, one of the greatest areas of harm for lesbians and gay men, and for trans folks as well, is discrimination in the form of legal complexity. Solving these legal problems takes time, money, expertise -- and a willingness to deal with messy rules and legal uncertainty. This is especially a problem in small towns, or in regions of the country where there aren't a lot of gay-savvy attorneys, and it is especially difficult for folks without a lot of money. The purpose of law is to help people organize their lives in efficient and fair ways -- and the current patchwork of inconsistent laws does not meet that purpose.

Block: What is the most prudent course of action given these problems?

Hertz: Most lawyers advise couples to not marry or state-register unless they live in a state that fully recognizes their relationship. Getting married as a political statement is a noble gesture, but creating years of problems and thousands of dollars of legal bills for yourself is not helping anyone in the long run. Even while your relationship lasts, there will be uncertainty about what legal and financial rules apply to you, and so you might be embroiled in all sorts of controversy. Now, if you want to set yourself up as a test case and take on these discriminatory rules, please be my guest - but be conscious of the costs and difficulties you might face, especially if you break up. And, since your marriage or partnership might not be recognized in the state you live in, you definitely should be signing powers of attorney, wills, and property agreements -- and doing an adoption if you have children, just as if you had not married or state-registered.

Block: Where can I learn more about these issues and options?

Hertz: Additional information on each state's rules and procedures can be found at the websites of Lambda Legal Defense (www.lambdalegal.org) and the National Center for Lesbian Rights (www.nclrights.org). For more info about the book, you can visit www.MakingItLegal.net.