Can a Judge Prevent the Divorce of a Same-sex Couple?

Same-sex marriage has been approved by the federal Supreme Court years ago. However, it has not been very clear on whether they have the same conditions as marriages of the opposite sex.

In the state of Texas, there are some questions on whether the rights of same-sex couples to marry will also translate to their rights to divorce. Family lawyers in Texas shed some light on these questions.

The Waiting Period

The short answer to the question of whether a judge can prevent a divorce for same-sex marriages is “no”. However, divorces in Texas are subject to a sixty-day waiting period. This is likely to apply to same-sex marriages as well since gender is immaterial in the premise of the regulation. This waiting period may be mistaken by some as a judge preventing a divorce.

The waiting period lasts for sixty days, which means the judge will only issue a final decree of divorce no less than 61 days after the original divorce is filed. The purpose of the waiting period is to allow the couple, same-sex or otherwise, to really understand the consequences before they decide with finality that they want a divorce.

Family courts will often caution couples from divorce unless there are certain cases like domestic violence or abuse. In such cases, divorce may be critical to the safety of an aggrieved party. Family court judges can waive the sixty-day waiting period in these cases.

However, barring these circumstances, judges would repeatedly question the spouses with their divorce and this is why they require mediation.


Mediation is a formal negotiation between your lawyers and the lawyers of the opposing party with a third-party mediator. The purpose of mediation is not to patch things up to reconcile the couple. Mediation helps thresh out details and possibly work out settlements on various details.

The key to a “smoother” divorce with fewer contentions and drama is understanding. Understand that you will not get all your demands. Be realistic about the situation. There are no real winners in a divorce. Mediation can offer a new, legal perspective that can temper your expectations so it can lead to a less contentious proceeding.

The misconception is that mediation is trying to dissuade or discourage you from filing a divorce or asserting your rights. This is why there is a question on whether a judge can prevent any couple, same-sex or opposite sex, from having a divorce.

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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas. If you have any questions you can contact him at

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