As the nation awaits the United States Supreme Court’s imminent and historic decision on same sex marriage, other courts in the country are addressing issues of particular importance to same sex couples: can they get divorced? Since states draft and enact their own laws governing marriage and divorce, the landscape throughout the country varies a great deal from place to place. A same sex couple who marries in a state where it is legal may find some difficulty obtaining a divorce from a state that does not recognize the union. Divorce laws serve to protect the parties’ rights throughout the process and going forward, once the couple separates. If you are considering a divorce, whether from a same sex marriage or not, it is vitally important that you contact a local Maryland divorce attorney who can guide you through the process while seeking to protect your financial and legal rights.
In a very recent divorce case, the highest state court in Texas ruled that the State Attorney General (“AG”) could not stop the divorce of a same sex, Texas couple who were married in Massachusetts. Essentially, the court held that the AG did not intervene in a “timely manner.” Here, the parties were married in 2004 in Massachusetts. However, several years later a Texas district court granted the couple’s divorce. The AG later attempted to intervene in the case and stop the divorce. In 2011, a court of appeals in Austin concluded that the attorney general’s office did not have standing to appeal the divorce between two state residents. On appeal, a majority of the highest state court agreed, avoiding the crux of the issue by pointing out that the decision was limited to whether or not the AG’s office’s effort to intervene was timely.
According to a news article, the Justice who authored a dissenting opinion (joined by two other Justices) concluded that the AG, as the State’s chief legal officer, should be able to present the case as part of that office’s duties. The Justice further suggested that he would allow the AG to argue that the Texas Constitution prohibits a judge from performing a same sex marriage and also from dissolving one. The Governor of Texas, Greg Abbott, characterized the decision as “disappointing and legally incorrect.” Abbott pointed out that the Texas Constitution prohibits the court from giving effect to a same sex marriage or any document that recognizes it, including a divorce decree.
While Texas and certain other states prohibit same sex marriage (and typically divorce too), many states, like Maryland, have passed measures legalizing same sex civil marriage in the state. In a recent blog post, we reported on the bill that was passed in Maryland in 2012. By the end of this month, the U.S. Supreme Court is expected to rule on the legality of same sex marriages. It will be interesting to see how this ruling will affect state laws on same sex marriage and divorce.
Divorce is difficult, no matter what the circumstances. There are many issues that can affect your family’s rights in the future. To protect yourself and get through the process as efficiently as possible, you are encouraged to contact a local divorce attorney as early as possible. Anthony A. Fatemi is a Maryland family law attorney with experience representing parties in divorce and related matters. For representation and legal guidance, you can contact Mr. Fatemi at (888) 519-2801 or (301) 519-2801.
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