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Richard Orsinger


Status of Same-Sex Marriage and Divorce in Texas

At the present time, the Texas Constitution and Texas Family Code prohibit Texas courts from recognizing same-sex marriages, even those contracted in states where same-sex marriage is allowed. On February 26, 2014, Federal District Judge Orlando Garcia, in San Antonio, declared those prohibitions unconstitutional. However, he stayed the effect of his order while the order is on appeal to the Fifth Circuit Court of Appeals in New Orleans. The appellate case was argued to a three-justice panel of the Fifth Circuit Court of Appeals on January 9, 2015. No decision in the appeal has been handed down yet.

In the meantime, some Texas District Judges are entertaining same-sex divorces, ruling that the ban on same-sex marriage is unconstitutional under the Fourteenth Amendment to the U.S. Constitution. Several decisions like that are on appeal to Texas appellate courts.

In the meantime, the U.S. Supreme Court has granted review in four cases out of the Sixth Circuit Court of Appeals, indicating that it will determine whether the Fourteenth Amendment requires all states to grant same-sex marriages or to recognize same-sex marriages contracted elsewhere.

If you are in a same-sex marriage and need assistance with a break-up, you don't have to wait for the appellate courts to rule. You can apply for relief in state court now, and the trial judge may be willing to grant some relief. If you reside in an area where the trial judge will not entertain same-sex divorces, there may still be other judicial relief you can get that does not depend on a valid marriage.

Board Certified in Family Law and Civil Appellate Law by the Texas Board of Legal Specialization.

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