Same-Sex Marriage is Legal - What That Means to Texas

In late June 2015 the Supreme Court ruled that states could no longer prohibit same-sex marriages. The result was that in Texas same sex couples were able to be legally married for the first time. While there was an initial firestorm of protest over the decision, that firestorm has died down and it is now understood that same sex couples have the same rights to get married as any other couple.

Supreme Court Decision

In the decision of the Obergefell v. Hodges case the United States Supreme Court held, “The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the 14th Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. The State laws challenged by Petitioners…are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” As a consequence, the United States Supreme Court invalidated as unconstitutional, all State laws that prohibit same-sex marriage and that fail to recognize same-sex marriage.

What About Texas?

As a result of this, the Texas Family Code Section that reads, “A marriage between persons of the same sex or a civil union is contrary to the public policy of this state and is void in this state,” is no longer valid. Another section is also invalid and unconstitutional as it reads, “The state or an agency or political subdivision of the state may not give effect to a: (1) public act, record, or judicial proceeding that creates, recognizes or validates a marriage between persons of the same sex or a civil union in this state or in any other jurisdiction; or (2) right or claim to any legal protection, benefit, or responsibility asserted as a result of a marriage between persons of the same sex or a civil union in this state or in any other jurisdiction.”

In addition, the Texas Family Code which states, “A man and a woman desiring to enter into a ceremonial marriage must obtain a marriage license from the county clerk of any county of this state” will have to be revised to read something like, “Two persons” rather than “a man and a woman.” Finally, the Section that says, “A license may not be issued for the marriage of persons of the same sex” is now invalid and will have to be revised or deleted from the Texas Family Code when the legislature meets in 2017. The Obergefell decision will cause other revisions to Texas laws and well as the laws of other states which prohibited same-sex marriage.

Non-Traditional Marriage, Non-Traditional Divorce

Since it is now legal for same sex couples to get married in Texas, it also means that same sex couples will get divorced. Ultimately the issues that result in a divorce in traditional marriages are the same issues for same sex couples. Using the Collaborative Divorce in these cases may be the best way to protect the privacy of the couple in the midst of the divorce and to work through the financial issues in order to protect the assets of both sides.

At the Law Office of Tim Whitten, we believe that collaborative divorce is the best option for handling a divorce whether it is a traditional or non-traditional marriage. Contact us or call (512) 790-5066 to learn more about the options for handling a divorce whether it is a traditional or non-traditional marriage.

Texas Family Code Section 6.204(b), Section 6.204(c), Section 2.001(a), Section 2.001(b)

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