June 2021 UPDATE: The Dallas Court of Appeals has withdraw their original opinion in this case from December 2020 and replaced it with a new opinion. The new opinion eliminates the dicta (lawyer word for unnecessary opining) about the issue of retroactivity of same-sex marriage pre-Obergefell and sticks to the main question of whether error was preserved about the jury charge. That was my main criticism about the December 2020 opinion — it didn’t need to go there to reach the decision in the case. The Dallas Court of Appeals appears to have self-corrected on this issue to stick with the main point of the case and not wade into the controversial issues unnecessarily.



The Dallas Court of Appeals issued an opinion in Hinojosa v. Lafredo on Friday that potentially calls into question the retroactivity of same-sex marriages in Texas.

Hinojosa sued for dissolution of an alleged marriage. The trial court bifurcated the case and jury trial was held on the first portion of the case to determine whether there was an informal marriage.

The relationship began in 1999 when the two men began cohabiting together. At Christmas LaFredo proposed marriage in a card given to Hinojosa. Hinojosa agreed to be married. LaFredo later denied this was a marriage proposal because he knew that two men could not marry under the current state of the law at that time. The two held a “commitment ceremony” in october 2000 in Italy with their friends and family in attendance. During the ceremony, the men exchanged rings, lit a unity candly, and accepted each other as “life partners”. Hinojosa called the ceremony a wedding thereafter and LaFredo never objected to that characterization. After returning to New York following the ceremony, both men referred to each other as married in front of others and introduced each other as spouses. In 2005 the men moved to Texas and bought a house together. The real estate documents listed the men as “single” co-owners. Throughout the relationship, the men maintained separate bank accounts, filed separate returns as single individuals, and attempted to split their expenses evenly. The parties separated in 2014 and Hinojosa filed for divorce in late 2015.

Hinojosa plead for divorce based on a formal ceremonial marriage, or alternatively, based on an informal marriage. At the bifurcated trial on the existence of a marriage, the jury charge did not include a question about whether there was a formal, ceremonial marriage. Instead, the charge only asked if the men were “informally married” and as of what date.

The error presented at the court of appeals challenged the jury charge. First, Hinojosa argued that the jury should have been charged on whether there was a formal marriage. Second, Hinojosa challenged an instruction given to the jury that Texas did not legally recognize same-sex marriage prior to June 26, 2015 because it was an incorrect statement of the law which confused the jury.

As to the first issue, the court of appeals held that it was not error to refuse to charge on whether there was a ceremonial marriage because the requirements for ceremonial marriage were not met. In other words, the men did not get a marriage license executed by the county clerk and have the ceremony performed by a judge, clergy, or public official within 90-days of getting the licenses. The court of appeals went on to opine that the question of the effect of Obergefell’s decision determining the impediments to same-sex marriage unconstitutional leaves an open question as to the retroactive application to relationships that pre-dated that decision. Further, the court opines that, even assuming Obergefell applies retroactively which relieved the men from establishing that they obtained a valid marriage license, they still must prove that the other requirements of a ceremonial marriage were met.  The court of appeals held that Hinojosa’s counsel failed to properly request the charge he sought to be included and tender the exact wording he wanted included.

As to the second issue presented to the court of appeals, Hinojosa complained that the instruction about the legality of same-sex marriage misstated the law. However, the court of appeals found that Hinojosa failed to make that objection at trial which waived his error on appeal. Further, the court of appeals held that Hinojosa failed to show that the inclusion of the offending instruction caused the rendition of an improper judgment.

Michelle’s commentary: Ultimately, the court of appeals affirmed the judgment of the trial court based on trial counsel’s waiver of error. The dicta regarding the supposed openness of the retroactivity question seems unnecessary to the result. It confuses me in reading the opinion why it was germane to the discussion for the court of appeals to opine about retroactivity. Courts of appeals justices are known to hang on waiver error when possible to avoid controversial determinations. So, there should have been no reason to wade into the waters of retroactivity of Obergefell when they found waiver.


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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 30+ 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 30+ 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, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. 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 for multiple years. She was named one of the Best Lawyers in America 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.