No, You Can’t Marry in Texas, but You Might Be Able to Divorce

Mike Gonzalez

by Marene Gustin

While LGBT couples in the Lone Star State might be able to sing along to Tammy Wynette’s 1968 country hit “D-I-V-O-R-C-E,” it’s been a crapshoot as to whether or not they could actually get one.

Two Dallas men, legally married in Massachusetts in 2006, filed for divorce in Texas in 2009. Attorney General Greg Abbott stepped in and argued that the judge could not grant the couple, known as J.B. and H.B., a divorce because the state does not recognize their marriage. No marriage, no divorce.

As we all know, same-sex marriages or civil unions are prohibited by a 2005 voter-approved amendment to the state Constitution and by the Texas Family Code. Despite that, the Dallas divorce was granted but then overturned on appeal, based on Abbott’s argument.

Sabina Daly of San Antonio and Angelique Naylor of Austin were also married in Massachusetts back in 2004. They moved to Austin where they filed for divorce in 2010. The judge granted the divorce before Abbott could intervene, and an appeals court upheld the divorce on the grounds that Abbott was too late.

Both cases are now at the State Supreme Court, waiting to be heard, but it’s doubtful that they will be anytime soon.

You might say what’s the big deal? If Texas doesn’t recognize the marriage, then why not just walk away from it? Why do you need a divorce?

“People run off and get married in other states and then come back to Texas and don’t think about it,” says attorney Michael W. Gonzalez. “And if the relationship ends, they just walk away. But if you don’t legally end the marriage, you can wind up in some trouble. If one partner moves to a state that does recognize the union and the other partner dies, the remaining one is entitled to half of his estate, even if he has a new partner and a will.”

And, he adds, the same could apply to debt owed by one partner at the time of death. The surviving partner could be held responsible.

So what can you do?

Have the marriage voided. Under Texas law you can go to a judge in civil court and have a union voided because, as the Family Code states: “decree of voidness does not ‘give effect’ to the void marriage but, just the opposite, establishes that the parties to the ostensible but void marriage were never married for purposes of Texas law.”

“It’s like an annulment,” explains Gonzalez. “It’s like saying the marriage never really happened, but it’s a legal way to dissolve the partnership.”

It’s actually easier than a divorce, and there’s no 60-day waiting period. The only drawback is that you still have to go back to court to divide assets or for child custody cases or name changes.

“Abbott is actually advocating this method in his brief to the court on the Dallas case,” Gonzalez says. “He actually says a ‘suit to declare the marriage void is the proper legal mechanism for dissolving an out-of-state same-sex marriage in Texas.’”

Despite the fact that Gonzalez has started using this method to dissolve marriages, he thinks it is setting a double standard.

“It’s Brown v. Board of Education all over again,” the attorney explains. “Separate but equal. And it confers special rights on the gay community.”

Maybe some day Texas will recognize same-sex marriages. As the federal Defense of Marriage Act winds its way through the higher courts, after the Second Court upheld a lower court’s decision that Section III is unconstitutional (the section that states “benefits of marriage can only go to opposite sex couples regardless of state law”), it is feasible that someday things will change.

As Gonzalez says of his partner of 18 years, “I pay into Social Security, but if I die there’s no way he can get any of that money under current law.”

His advice to same-sex couples?

“Don’t run off to another state to get married lightly, and make sure you have a will.”


Marene Gustin

Marene Gustin has written about Texas culture, food, fashion, the arts, and Lone Star politics and crime for television, magazines, the web and newspapers nationwide, and worked in Houston politics for six years. Her freelance work has appeared in the Austin Chronicle, Austin-American Statesman, Houston Chronicle, Houston Press, Texas Monthly, Dance International, Dance Magazine, the Advocate, Prime Living, InTown magazine, OutSmart magazine and web sites CultureMap Houston and Austin, Eater Houston and, among others.

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