San Antonio gay man files for common law divorce from 25-year relationship that began before same-sex marriage was legal
The case could set a precedent in Texas for same-sex couples who were together before the Supreme Court legalized same-sex marriage.
A gay man from San Antonio has filed for divorce in which he seeks to prove that a common-law marriage existed with his former partner of 25 years when federal law prohibited same-sex marriage. The law has since been ruled unconstitutional by Obergefell v Hodges in 2015.
If successful in his divorce petition, Christopher Hoffman would be entitled to child support and other benefits from his former partner Moises Ortiz. It would also be the first time in Texas that a common law, or informal, divorce would be granted to a same-sex couple who were together before Obergefell.
The Texas Family Code provides two methods for establishing a common law marriage. The first is to “file an informal declaration of marriage with the county clerk. Texas Family. Code 2.40l(a)(l). The second is to show that “I) the parties “agreed to marry”; 2) that the parties lived together as spouses; and 3) that they “represented to others that they were married”. Texas Family. Code 2.401(a)(2). Moreover, the partner who seeks to establish the existence of a de facto marriage “bears the burden of establishing the three elements by a preponderance of the evidence”.
According to court documents, Hoffman and Ortiz lived together for 25 years beginning in 1994. Hoffman filed for common law divorce on July 19, 2019, citing adultery and abuse, among other reasons. In response to Hoffman’s claim, Ortiz denies the existence of a common-law marriage, saying he and Hoffman had only been roommates.
On July 30, 2019, Bexar County 45th District Court Judge Mary Lou Alvarez found Ortiz’s claim that he and Hoffman “were simply roommates acting as partners to be incredulous testimony.” . The judge then issued a temporary order requiring Ortiz to pay Hoffman $1,200 per month in interim child support until the final verdict in the jury trial.
On January 22, 2021, Ortiz’s attorney filed a motion for declaratory judgment that would have made a final, legally binding declaration that Hoffman’s motion was invalid.
Ortiz argued that there is no precedent in Texas state law to show that Obergefell applies retroactively to same-sex couples. Hoffman’s attorney countered that there had been two incidents (Ford v. Freemen 2020 and Hinojosa v. LaFredo 2012) of Texas courts recognizing “a pre-Obergefell same-sex common law marriage.” However, no Texas appellate court has issued binding authority on the matter.
Shelly Skeen, Senior Counsel at Lambda Legal wrote a brief in Hinojosa v. LaFredo.
Details Hoffman offered in court to show that he and Ortiz were indeed in a common-law marriage include:
- Evidence that matching rings were purchased and worn by both men
- Photographs of the two wearing the rings at a Christmas party
- Photos of the couple dressed as King and Queen of the Royal, Sovereign and Imperial Court of the Alamo Empire
- Correspondence from JPMorgan Chase Bank, NA addressed to both parties confirming joint mortgage loan
- A 2015 article in the San Antonio Express News featuring numerous photos of a new downtown apartment and giving the couple’s names as owners.
On August 18, 2021, Judge Cynthia Marie Chapa of the Bexar County 45th District Court denied Ortiz’s petition, clearing the way for Hoffman’s divorce proceedings to continue.
The trial is scheduled to begin Monday, March 21, with Judge Aaron Haas of the 285th Civil District Court presiding.