On Gay Marriage and Divorce in Texas

In the past week, Texas has unexpectedly become the epicenter for an interesting debate regarding gay marriage — specifically, what happens when married same-sex couples want to divorce. In Judge Tena Callahan’s view, a gay couple who was married in another state and now lives in Dallas has the right to get divorced.

While the case brings up interesting issues around the Constitutionality of marriage bans and the growing number of states allowing for same-sex marriage, it also brings up a number of issues for Collaborative Law proponents. When same-sex marriage couples seek divorce, we recommend the Collaborative Law process — as we do for most all married couples.

Whether the partners in a marriage are of opposite genders or the same gender, issues that come up in divorce proceedings can be emotionally charged and difficult to resolve. Each couple has a unique set of circumstances they bring to divorce proceedings and each person has their own individual perceptions of what would be fair and how they want the legal process to help them transition from life as a couple to life as a divorced person.

For gay couples, the Collaborative Law process offers what it offers straight couples — the opportunity to negotiate a divorce without the intercession of the courts in the process. Lawyers with clients who have been involved with contested courtroom divorce cases know how difficult the litigation process can be on the parties involved. Though this is relatively new territory for gay couples, we anticipate the litigation process could prove to be even more difficult for divorcing gay couples than it is for divorcing straight couples given all the uncertainties of the law and its application in these situations.

Another important and attractive factor in the Collaborative Law process is the level of privacy and confidentiality it offers to its participants. While litigated divorce proceedings happen in a courtroom in a publicly-accessible building generally open to the press, the Collaborative Law process happens within a professional’s private office, where only the parties and members of the collaborative team are present.

Lastly, the Collaborative Law process offers a level of control over the process that can’t be attained in the courts. It the court system, the Court is in charge of virtually all aspects of the divorce – in the Collaborative Process the parties are in charge – gay or straight – maintaining control of your own destiny is crucial.