Judge grants Tarrant County’s first gay divorce

It took two Tarrant County women nearly two years to legally end their failed marriage because of the tangle of state and federal law.

But on Thursday, Brooke Powell and Cori Jo Long were finally divorced after a five-minute hearing before state District Judge William Harris.

Court officials said they believe it is the first same-sex divorce in Tarrant County and one of the few in Texas.

“It’s been a roller coaster,” Long said after her courtroom appearance. “Honestly, I didn’t think it would happen.”

The U.S. Supreme Court’s ruling June 26 that the Constitution guarantees a right to same-sex marriage is what prodded Tarrant County judges to grant the divorce.

But don’t expect the first divorce to open the floodgates, legal experts say. Although the Supreme Court’s decision led to a rush of same-sex weddings, that won’t happen with divorces. They are not as simple as reprinting the marriage license form.

To appeals court and back

Powell and Long married in New Hampshire in 2010. Four years later, one woman filed for divorce while the other asked Texas to act as though the marriage never took place.

But Harris closed off both options, and the women appealed their case to the 2nd Court of Appeals in Fort Worth.

“It was a feeling, initially, of being invisible,” Powell said. “There was no resolution. But I always had faith in the legal system that this day would come.”

Citing the Supreme Court ruling, the appeals court sent the case back to Harris. This time, he granted a divorce.

But state law on divorce does not seamlessly mesh with the high court ruling on marriage, attorneys for the former couple said.

More complex same-sex divorces may require tools that do not yet exist, said Sonya Carrillo, Long’s attorney.

“If this had been a divorce between a heterosexual couple,” Carrillo said, “it would have literally taken 61 days” — the shortest time allowed under Texas law in most circumstances. “But for them being of the same sex, this would have been over long ago.”

Add to that all the pressure of having a very public, very visible breakup where the news media follows your every step, said Susan Smith, Powell’s attorney.

“This is not just a benefit to Brooke and Cori but to all same-sex couples,” she said.

Seeking gender neutrality

Karen Langsley, an Austin attorney who specializes in same-sex splits, said judges must seek to apply existing law in a gender-neutral fashion to resolve same-sex cases the way they resolve heterosexual divorces.

“Who knows whether [state lawmakers] want to or have the will to make the family code gender-neutral?” Langsley said. “They could try, but the Supreme Court said the state’s sodomy law was illegal in 2003 and they still have that one on the books.”

This was a simple divorce, the women’s attorneys said. There was no property to divide and initially no child custody decisions to hammer out.

“Since they split up, my client has purchased a house and adopted a child,” Carrillo said. “Had Brooke decided to fight for custody, there could have been some significant legal issues that might have come up.”

The state’s family code is not clear on whether both parents in a same-sex couple remain parents after a marriage is dissolved, Carrillo said.

“The Supreme Court did not really touch on the kid issue, and our Legislature does not meet again until 2017,” Carrillo said. “The family code is huge, and it will take a bit of time to make some of these changes.”

The pressure may end up being on judges and attorneys to become comfortable making decisions on same-sex divorces and family issues, she said.

“I can’t tell you the number of attorneys who have called me asking questions like: ‘I have this type of case. What should I do?’” Carrillo said. “I tell them to just treat it like any other case. These are just divorces.

“If everyone just does their jobs, things will go a lot smoother.”

The issue of whether the Supreme Court decision is retroactive could involve complex legal arguments in some same-sex divorces, as could the issues of adoption and assisted reproduction, said Meg Penrose, a Texas A&M University law school professor.

But Penrose also said it’s not unusual for state law to take time to accommodate federal rulings, such as Roe v. Wade, which made abortion legal.

“The state has had to go back and change law to comport with a federal decision before,” Penrose said. “They are still doing it.”

As for Tarrant County’s first same-sex exes, Long said she believes it will now be easier for other same-sex couples to navigate the Texas family courts.

“Now it will just be everyday life,” she said. “People get married and people get divorced. The LGBT community will have legal protection.”

This story was originally published August 20, 2015 at 11:54 AM with the headline "Judge grants Tarrant County’s first gay divorce."