How would you feel if you and your spouse wanted to end your marriage, but you couldn’t because the state doesn’t recognize that you are married? That’s the problem facing some couples who were married in states where same-sex marriage is legal and then moved to states like Texas where it is not.
One woman who married in Washington and moved with her spouse to Texas is fighting for the right to divorce her wife of four years and shared custody of the couple’s baby, to whom her wife gave birth. The state does not recognize the 33-year-old woman as a parent of the nearly 18-month-old baby, conceived through artificial insemination.
This spring, a district judge allowed the divorce to proceed under the grounds that Texas’ ban on same-sex marriage is unconstitutional. An appeals court, however, halted the divorce when Attorney General Greg Abbott claimed that it could lead to “legal chaos.”
Same-sex couples have a few options, all of which come with complications. They can get an annulment, move to a state where their marriage is legal, take the case to court or remain spouses in name only.
The annulment process doesn’t settle property division or child custody issues. If they move, they still may have to meet residency requirements before they can divorce. Four states and Washington D.C., however, waive those residency requirements for couples who married there.
Couples in over a dozen states have gone to court with mixed results — even within the same state. One Austin couple was granted a divorce, while a Dallas couple was not. An attorney notes the irony: “If you are opposed to same-sex marriage, it seems like you should be in favor of at least allowing [same-sex couples] to get divorced.”
Those couples forced to continue, at least on paper, in an unhappy marriage face a legal issues regarding taxes, financial decisions and child custody. One attorney says that by denying couples a divorce, the court “binds a broken relationship together against the best interest of the state, the taxpayers, the individuals and their children.”
Currently, 19 states and the District of Columbia have legalized same-sex marriage. The momentum in other states is building. That means that Texas courts will increasingly be faced with couples who are asking not for the right to marry, but simply for the right to end an unhappy union and move on with their lives.
Source: USA Today, “For some same-sex couples, breaking up is hard to do” Richard Wolf, Jul. 25, 2014