Someone asked me today… if the US Supreme Court challenge to DOMA (federal Defense of Marriage Act) succeeds, will anything change in Texas?  The truth is that even if the litigants in US v. Windsor prevail, they have challenged section 3 of DOMA, which prevents the federal government from recognizing a legal same-sex marriage granted by a state that has laws for such.  The litigants there did not challenge section 2 of DOMA, which is the section that says that states do not have to recognize same sex marriages from other states. (See the wiki on DOMA here.) Section 2 overrides the US Constitution’s provisions that require each state to give “full faith and credit” to the laws of other states. (See the wiki on Full Faith and Credit Clause here.) In 2003, Texas passed its own version of the Defense of Marriage Act, mirroring the federal version.  (See Governor Perry’s site on Texas’ Defense of Marriage Act here.)

So, in the event that the US Supreme Court agrees with the litigants in Windsor, the likely outcome of striking down section 3 of DOMA will only provide federal benefits to same-sex married couples, but will have no effect on each state’s rights to pass their own laws regarding same sex marriages.  Until Congress or the US Supreme Court is faced with a challenge to section 2 of DOMA, squarely challenging DOMA’s provisions overriding the US Constitution, same sex couples are stuck with the current situation in Texas.  That means that a couple who is married in a state that recognizes same-sex marriage, who then moves to Texas and breaks up, cannot get divorced under Texas laws.  That couple faces a decision to move to a state that provides for divorce of same-sex marriages in order to legally dissolve their marriage.  Texas provides very little remedies for these couples under the present laws.

 

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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.