By Joseph W. McKnight and Shanin Turner Brevig

Abstract
Same-sex unions, whether formal or informal, remain unrecognized under Texas law. Nevertheless, Texas appellate courts dealt with disputes concerning same-sex marriages that were recognized by other states and their proprietary consequences. Of these cases, In re Marriage of J.B. and H.B. and State v. Naylor both dealt with the proprietary aspects of divorce proceedings involving same-sex couples.

Previously in August 2010, the Fifth Circuit Court of Appeals disagreed with a Dallas County district court, siding with Texas in In re Marriage of J.B. and H.B. when it reversed and remanded for ultimate dismissal. The Fifth Circuit concluded that J.B. and his partner, who married in Massachusetts, could not divorce in Texas. The Fifth Circuit also concluded the State’s petition for intervention should not have been struck by the district court as untimely and in violation of the Equal Protection Clause.  J.B. seeks a reversal on this decision, and, in the interim, remains in marital limbo.

In State v. Naylor, a Travis County district court granted a divorce in 2011 to a same-sex couple who also were wed in Massachusetts. The State intervened the day after the divorce was granted, arguing the trial court lacked subject matter jurisdiction over the divorce. Additionally, the State argued that the sole vehicle for marriage dissolution should be voidance.  The trial court issued the divorce without ruling on the State’s claims, and the State appealed. The Third Circuit Court of Appeals dismissed the State’s appeal for lack of subject matter jurisdiction, emphasizing “‘the rule that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment, is well settled.”‘ Both of these cases now have been granted review by the Texas Supreme Court. Because the United States Supreme Court recently decided on two cases based on constitutional questions relating to same-sex unions in June 2013, it is likely Texas will resume its handling these cases now.

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Recommended Citation
Joseph W. McKnight, et al., Family Law: Husband and Wife, 66 SMU L. Rev. 895 (2013)