As a family law attorney in Texas, I constantly get individuals asking me if they can get a same-sex divorce. And the answer to them is always – Yes!
Since the Supreme Court case in Obergefell v. Hodges in 2015, the Supreme Court held that same-sex couples may exercise the fundamental right to marry in all states (even in the State of Texas). No lawful basis exists for a state to refuse to recognize a lawful same-sex marriage performed in any state of the union on the basis that the marriage is a same-sex marriage.
The State of Texas had always resisted the idea of same-sex marriage and of course the idea of a same-sex divorce. In State v. Naylor, the State of Texas had appealed a decree of divorce in which 2 members of the same sex attempted to get a divorce in Texas. The state argued that the divorce court had no authority under the laws of Texas to grant a same-sex divorce. Luckily, the court of appeals dismissed the State of Texas case because the State was not a party to the divorce and lacked the standing to bring the appeal. The Texas Supreme Court agreed with the court of appeals and denied the State of Texas any further action on the matter.
However, I also get inquiries from individuals who are married to a minor and want to know if they are legally married or if they can get a legal divorce from the person. Under Texas law, a marriage can not exist between an adult and a minor or between two minor persons. The marriage if void if either party to the marriage is younger than 16 years of age. There is a section in Texas law, however, that allows a party to be married to a minor person.
Practicing family law can be an interesting career because of the situations that are brought up by individuals seeking legal assistance. One that stands out is from an individual who had married his step-daughter and wanted to know if he could go to jail for doing so. The fact is that a marriage is not valid if a party is a current or former stepchild or stepparent of the other party. So, my answer in those inquiries is that no marriage exists. And, if the person was stupid enough to have married a stepchild, then, I always suggest that they seek an annulment as soon as possible.
All the same-sex divorces we handle at The Barbosa Law Firm are handled like any other divorce. There is no bias or prejudice by legal professionals or the courts in Texas that would deny a person who is legally married to be able to file a divorce in Texas and have the Court make the fair and just rulings regarding community property, community debts, or even conservatorship orders.