It is simply “none of your damn business.” Essentially that is what the Supreme Court of the United States said in 2015 when it found statutes prohibiting the marriage of same sex couples unconstitutional – a violation of the 14th Amendment. Texas was not part of that lawsuit, but Texas, like Michigan, Kentucky, Ohio, and Tennessee, had strictly prohibited the same sex marriage.
The marriage of two people is a personal intimate relationship. Our society has changed in drastic ways over these last few decades. Where once women did not have access to birth control, they now do. Couples cohabitate without the benefit of marriage. Children are born to unmarried couples. In our modern society couples of the same sex, like heterosexual couples, make lifetime commitments to one another. And — just like heterosexual couples, gay couples end their relationships through divorce. Just like anyone else going through a divorce, the gay couple is faced with those same dissolution of the marriage issues that affect all divorcing couples – custody of children and division of the marital estate. In that regard, the divorce pages on this website, the analysis therein, all apply to the gay couple as well as the heterosexual couple. There is no difference from the domestic litigation perspective.
Jackson Law – we are experienced family law litigation specialists. Jackson has a long history of representing members of the gay community in the dissolution of their partnership (then partnerships, today marriages). Back in the day, when the relationship was not recognized, the same sex relationship was dissolved through partnership law. Today, it is squarely under the family code.
Obergefell is summarized by Justia as follows: “The Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. The Court noted other changes in the institution of marriage: the decline of arranged marriages, invalidation of bans on interracial marriage and use of contraception, and abandonment of the law of coverture. The fundamental liberties protected by the Fourteenth Amendment extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. Marriage is a centerpiece of social order and fundamental under the Constitution; it draws meaning from related rights of childrearing, procreation, and education. The marriage laws at issue harm and humiliate the children of same-sex couples; burden the liberty of same-sex couples; and abridge central precepts of equality. There may be an initial inclination to await further legislation, litigation, and debate, but referenda, legislative debates, and grassroots campaigns; studies and other writings; and extensive litigation have led to an enhanced understanding of the issue. While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right. The First Amendment ensures that religions, those who adhere to religious doctrines, and others have protection as they seek to teach the principles that are central to their lives and faiths.”
In all divorces, dissolution of the marriage (divorce) will involve two broad issues if there are children. The first is the property case and the second is the child case (called a Suit Affecting the Parent Child Relationship – a “SAPCR”).
Click here to learn more about the Child Custody or Suit Affecting the Parent Child Relationship as applied to the gay or lesbian couple.
Comment, I did my first same-sex divorce case probably in 1997. These were property cases and, back then, were treated as dissolution of a partnership and partnership law applied. Same-sex divorces were treated as a business venture in those days. If children were involved, we treated the non-DNA partner as a step-parent and they had standing to bring suit for conservatorship. After Obergefell, all marriages are treated the same – heterosexual or same-sex. Jackson
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