The state of Texas does not care that my husband left our home in April 2013, and that I have not seen him since. Texas also does not care that I have no address for him and do not know where he is living. And, unlike with opposite-sex marriages, Texas is and was indifferent to my husband's drinking bouts, with their resulting string of hospital visits, criminal charges, lost jobs, and absence of support.
My husband is no longer the issue. I wish him well in his recovery and hope he finds someone else who makes him happy. I have moved on, to a new house warmed by the absence of drama, occasional candlelight, and two wonderful Great Pyrenees. But, the inability to get a divorce lingers over me, as if the state of Texas insists that ghost of my marriage remain in my house, with real world implications.
My adopted home state of Texas believes that same-sex marriage will cause "unplanned births" and that banning these marriages is necessary for "the survival of the human race." The state has argued in legal briefs and press releases that same-sex marriage is harmful to children, harmful to society, and an abomination. But Texas insists that it is an abomination in which I must remain.
The attorney general of Texas makes it a practice to intervene in all same-sex divorces filed in the state, arguing that Texas courts lack the authority to divorce gay or lesbian couples. While thousands of Texans get divorced each week, only same-sex couples have their divorces intruded upon by the state, which insists that the couple stay married. The policy is cruel lunacy.
No separated heterosexual would accept their state telling them that their request for divorce is denied and that they must remain with their spouse in their marriage. Indeed, I suspect few state policies would be a surer route to revolt at the ballot box.
While Texas does not recognize my marriage, the United States government does. Therefore, I must file a tax return as married filing separately, even though I would be better off filing as a single person. I also cannot change the beneficiary on my small retirement plan, because federal law requires a spouse's consent to do that. Should I get hit by a truck and die, federal Social Security law would provide my husband with death benefits. And even though Texas does not recognize my marriage, private entities do. If I am in a hospital, the staff would likely let my spouse in, consent (or withhold consent) to surgery and medicines, and perhaps let him "pull the plug."
Also, law enforcement is likely to view me as a married person. When my husband returned to our former house in the middle of the night to implement his view of a fair property division, I called the police. The police declined to get involved, because the intruder was my spouse.
Next, I cannot marry anyone else. While Texas would not charge me with criminal bigamy if I did, other states could do so.
Most importantly, it is time for me to move on, spiritually and emotionally, and to put that segment of my life behind me. It seems vicious for my state to say, "No, you cannot do that; the failed marriage must stay with you."
My nonlawyer friends tell me that the world has changed, and that same-sex couples can get divorced in nearly three dozen states. This is true, and it is wonderful, but all of those states have strict residency requirements for divorce (far more strict than their residency requirements for getting married). I cannot afford to pick up and move out of Texas to live in, say, Park City, Utah, for three months to gain residency to enable me to file for divorce there. The only state where I have residency is Texas, and Texas will not grant my divorce.
In June I filed for divorce in Brazoria County, Texas. In addition to standard provisions in a court filing for divorce, I had to state in the divorce petition that Article 1, SS32 of the Texas constitution, which deals with my marriage and divorce, conflicts with the Constitution of the United States. I also have to serve the divorce not only to my spouse but also to the attorney general of Texas. Other divorcing parties only have to worry about who gets the car, the retirement account, and the dog.
Gay divorces are the ugly stepsister of gay marriages. It's great that loving same-sex couples get the attention of politicians, the media, and the Supreme Court. But the policies of holdout states that force those of us in dead marriages to remain in them continues. That is, unless SCOTUS rules it's a constitutional right for same-sex couples to end their marriages as well as begin them.
ROBERT TEIR is a 17-year resident of Texas. Rob was assistant counsel in the original challenge to the District of Columbia same-sex marriage law and the first to request domestic partnership from a major Washington law firm. Teir practices family, probate, and appellate law at Anderson & Pfeiffer, P.C., in the suburbs of Houston. He also worked in professional theater as an assistant to Mickey Rooney and Eartha Kitt. His unhappy marriage makes him an understanding listener to clients going through divorces.