Texas Supreme Court Rules on Same-Sex Divorce

The Sam Sex CouplesState of Texas intervened in the divorce of Angelique Naylor and Sabina Daly after the trial court granted judgment.  The Court of Appeals dismissed the State’s appeal for want of jurisdiction, “holding the intervention untimely and finding no basis for appellate standing.”  In turn, the State sought review from the Supreme Court of Texas and, in the alternative, a writ of mandamus.  Today, in a 5 to 4 opinion, the Supreme Court upheld the Court of Appeals decision and denied the writ.  

Thus read the e-mail alert I received today, although the “today” referred to in the alert is actually last Friday – June 19, 2015. For legal scholars and those of us who pretend to be such, there is much more to the story but I fear the wording of this e-mail alert is misleading the general public. It is extremely important to note that the Supreme Court upheld the Appellate Court’s ruling that the State of Texas did not intervene BEFORE the trial court ruled on the case.

Before I begin, a few definitions may help. “Petitioner” means the spouse who ask for the divorce first by filing a pleading with the Court; “Pleading” means a written document filed with the Court that asks the Judge to give the filing party something (that something is known as the “requested relief”); “Petition” means the pleading that seeks a divorce as relief; “Respondent” means the Petitioner’s spouse who is obligated to respond to the request for divorce; “Plenary Power” means a time period during which the Judge may change the ruling – it is also the time period during which a party to the divorce can start an an appeal; “intervention” is a pleading filed by someone who is not named in the Petition or otherwise part of the divorce; and “standing” a subject of future blogs in it’s own right, refers to the ‘right to get involved in the first place‘ or to paraphrase Black’s Law Dictionary (6th Ed) – the party has sufficient stake in the controversy to ask for relief.

With these definitions in mind, the process of Divorce in Texas generally follows a simple path starting when the Petitioner submits the Petition to the Court. The Respondent may or may not answer the petition (that decision affects how the case gets to trial). Assuming a normal case, there are temporary hearings, interim motions, discovery and settlement discussions that all take place before trial. On the date prescribed for the trial, the divorce is either “proven-up” which is merely a formality of offering the minimum testimony to the judge, or the spouses can have a full-blown trial with witnesses, evidence, and the occasional sneer or perhaps name-calling. At the end of the trial, whether it is a simple prove-up or knock down and drag out fight, the Judge renders the judgment. A Judgement is said to be “rendered” when the Judge tells the spouses they are divorced and how the property is divided, who gets custody of the kids, etc. in an open courtroom with the parties present. After the Judge renders the judgement, one of the lawyers will draft the Final Decree or Order of the Court. I would say “reduce the judgment to writing” but if you have ever seen a divorce decree in Texas, the Judge speaks (“renders”) for a minute, maybe two – everything the Judge says verbally can be typed verbatim on one page; however, the Final Orders will be 15 pages or more for a divorce and if there are children involved, the decree will likely take up over 40 typed pages. The Divorce is deemed “Final” and the Court’s plenary power begins the day the written order/decree is signed. Remember, during this plenary period (which is 30 days in Texas for courts with the power to grant divorces), the Judge can change his/her mind, clarify what he/she meant, and even set the orders aside. Additionally, either spouse can file an appeal.

Now – with this general background as the way a case normally proceeds, and reading the underlying issues/pleadings, etc., the Supreme Court’s ruling is taken into consideration. The opinion gives a decent recitation of the background of the case and the law on same-sex-marriage in Texas for anyone interested but what is key to understanding the Supreme Court’s ruling is to know that at the trial, there were several attorneys from the Office of the Attorney General present and observing even though the AG’s Office had not filed an intervention and therefore “had no dog in this fight”. They were merely observers.   After two days of trial the Judge rendered a judgment that declared the Court may not be able to grant a divorce but can issue a ruling that “is intended to be a substitute for . . a valid and subsisting divorce” which judgment is further “intended to dispose of all economic issues and liabilities between the parties whether they [are] divorced or not.” Following on this rendition the State filed a Petition in intervention seeking to “oppose the Original Petition for Divorce”. Note, the divorce, if it may be called that has already been granted BEFORE the State elected to get involved. There are other legal filings involved but ultimately the trial Judge said the State waited too long. One can easily surmise the Judge felt compelled to do something but “dinner was served at 6:00 and you got here at 10:00” is an easy way out. So, the State filed an appeal.

At the Court of Appeals in Austin, the panel of Judges hearing the State’s argument essentially agreed with the Trial Judge and told the State that they were too late because appellate standing is typically afforded only to parties of record, citing a Texas Supreme Court case from 1965 styled Gunn v. Cavanaugh. In short, the Supreme Court agreed with the 3rd Court of Appeals and the State Trial Judge in finding that State could have intervened, if they had only done so before the trial judge ruled, explaining that the right to intervene is very broad and the State could have done so at any time BEFORE the trial, plus the State’s presence in the courtroom evidences the State Attorney General knew of the case. Waiting to see what the Judge does and then and only then deciding to get involved is clearly like showing up for dinner 4 hours late – plan to go to bed hungry.

What remains to be seen is this: Will Texas Courts grant divorces to same-sex couples? OR Will Texas Courts do as the Judge in Austin did, render a ruling that disposes of all economic issues and liabilities between the parties whether they are divorced or not; and if so, what do the lawyers file, a Suit for Divorce or a Suit to Partition?

There was a time in Texas when pre-nuptial agreements were almost taboo, the courts abhorred the idea couples could contract away community property rules.  The courts in recent years have relaxed their position on pre-nupt agreements and it is important to note that one of the underlying issues in this case, is that the couple had reached an agreement about division of the property that basically partitioned the property (call it a post-nuptial agreement if you will).  In fact, partition and exchange agreements or post-nuptial agreements have been part of Texas jurisprudence for years.  The bottom line is this:  same-sex couple or traditional, no one enters marriage planning it’s demise, but in a society where half of all marriages end in divorce, a pre-nuptial agreement is cheap insurance.

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