TX-Supreme-CourtAfter a long 2 year wait, the Texas Supreme Court finally issued rulings in the two same-sex divorce cases pending before it. One involved two men from Dallas — In re JB and HB. The other involved two women from Austin — Naylor v. Daly. Unfortunately, we are no closer to understanding how married same-sex couples living in Texas should address the dissolution of their relationships. And… it took 2 years to get here.

The first case, In re JB and HB, came out of Judge Tena Callahan’s court in Dallas County, Texas. Her ruling was heralded when she courageously held the Texas law prohibiting recognition of same-sex marriages in other states for purposes of conducting a divorce as unconstitutional. This case was anticipated to be THE case that would give us clarity on how to handle out of state marriage that wish to dissolve in Texas. Unfortunately, one of men passed away in April 2015. A divorce case is rendered moot upon the death of one of the parties and cannot be continued.  The Texas Supreme Court dismissed the case on June 19, 2015. A disappointing result for Texas jurisprudence.

The second case, Naylor v.Daly, out of the Austin area, presented a more technically challenging issue. At the trial court level, Naylor and Daly sought to dissolve their marriage. At first, the ladies disagreed as to whether a divorce under Texas law was proper or not, but then eventually reached a settlement of their disputes and entered an agreed divorce. Only after their case was finalized did the Texas Attorney General, then headed by now-Governor Greg Abbott, file pleadings to challenge the constitutionality of the trial court’s grant of divorce.

The Texas Supreme Court held that the Texas Attorney General waited too long to file his pleadings and therefore lacked the right to intervene and challenge the judgment. He could not wait until the case was over and judgment final to intervene. That was too late. So, according to the Texas Supreme Court, the same sex divorce stands. Now the opinion wades through a lot of jargon about the Texas constitutional definition of marriage being one man and one woman, etc. etc. But at the end of the day, procedure reigned and the OAG was just too late to complain.

I am concerned that many in the LGBT community will misinterpret this decision as a sanctioning of filing same-sex divorce cases for LGBT couples living in TExas who weremarried elsewhere. Tod Robberson, writing on the Dallas Morning News Opinion Blog, for example, goes there his headline Texas Supreme Court allows same-sex divorce, which means marriage can’t be far offOh, Tod, how wrong you are, and how disappointed many people are going to be.

Here’s my comment response to Tod’s blog post:

Tod, I think your headline expands today’s decision into unsupported territory. The opinion *was* decided on a technicality. Therefore, it does *not* support the general conclusion that same-sex divorces may go forward in Texas. The crux of the opinion says that the Attorney General must be MORE diligent in challenging same sex divorces under Texas law, instead of waiting until the case is over as he did in Naylor. The opinion delves very deeply into Texas’ constitutional definition of marriage as one man, one woman. As a family law attorney for 23+ years, and as an LGBT ally for all of those years, I believe this opinion only goes to far as to say — if you manage to file a same-sex divorce without the OAG finding out, and proceed to a final judgment without the OAG finding out, then your divorce is final. If, however, the OAG finds out and challenges the jurisdiction of the Texas court to maintain the divorce based on our constitutional parameters, then the case will head up on appeal, with great expenditure of attorneys fees, time, and emotional resources.

Admittedly, as an LGBT Ally and Advocate, the limitations of this decision are disappointing. Also disappointing is the dismissal of the J.B. case, also dealing with the right of same-sex couples to get a divorce in Texas, due to the death of one of the parties.

I hate for same-sex couples out there to read your column and get their hopes up that they can now have unrestricted access to the Texas court system to dissolve their marriages. This Naylor opinion does NOT support your conclusion and many folks will be disappointed in relying on your column for legal advice. However, the Supreme Court of the United States should rule in a few days to provide the clarity the Texas Supreme Court failed to provide.

So, for a few more days, Texas remains in limbo. We expect the Supreme Court of the United States to enlighten us sometime this month. Only then will we know for sure how to approach same-sex divorces in Texas.

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.