If the court voids the marriage that means the marriage was never valid.  Assuming the couple filed a joint tax return with the IRS (same sex marriage is not recognized at the federal level), could the IRS come back and now say those tax returns were invalid (and maybe fraudulent) and therefore any benefit the couple gained through filing as a married couple was gained falsely?  Could the IRS prosecute Nikki and the estate of her husband for filing a false return?  Could they fine or imprison Nikki?

This is the kind of thing that the courts invalidating state approved legal documents could have.

Quote from: Julie Marie on May 25, 2011, 02:37:25 PM
If the court voids the marriage that means the marriage was never valid.  Assuming the couple filed a joint tax return with the IRS (same sex marriage is not recognized at the federal level), could the IRS come back and now say those tax returns were invalid (and maybe fraudulent) and therefore any benefit the couple gained through filing as a married couple was gained falsely?  Could the IRS prosecute Nikki and the estate of her husband for filing a false return?  Could they fine or imprison Nikki?

This is the kind of thing that the courts invalidating state approved legal documents could have.

would not envision IRS implications for previous years...the tasks associated with unraveling the finances are probably not worth it for the IRS especially in light of the fact that there is no manner by which a Tax Court could find that there was a deliberate effort made to evade tax liability.  Remember, it is the deliberate evasion that tends to result in the prosecutions.  And only the really egregious cases result in pen time...and those usually require two comma amounts of deliquency. 

We have a client on a post-conviction matter who just made a payment on her taxes that brought the remaining liability to ~$800K and the IRS has not even begun to try and threaten criminal prosecution.  Other clients have been in similar liability positions and have never received a letter from the IRS.  And it is those sorts of instance upon which I base a presumption that, at least as it pertains to the IRS, Nikki can breathe easy.

But, in the scenario I painted, the IRS could prosecute, if they wanted to.  Correct?

Quote from: Julie Marie on May 25, 2011, 03:42:37 PM
But, in the scenario I painted, the IRS could prosecute, if they wanted to.  Correct?

In theory, they could prosecute ANYONE who was found to have a deficiency in their filing.  When you put the amount at potential issue into context and balance against the number of audits conducted annually, it just ain't happening...the amount at issue is likely far less that *I* owed when they decided some years after the fact that they did not like my math and wanted a very large sum.  And despite all of *that* go-round they never seemed to bat an eye for the year my ex and I filed jointly.

I was just poking around the the appellate websites to check on the current status of the Atty General's appeal in Naylor (the Travis Co same-sex divorce).  Saw an amicus brief was filed last week (well, closer to two weeks ago) by noted 'phobe and author of the Texas legislation against same-sex marriage.  His Constitutional arguments muddy the water as it relates to Nikki's case because I had forgotten that the Texas Constitution discusses marriage between a 'man' and a 'woman.'  That is NOT the same thing, legally speaking, as having declared it as being between a 'male' and a 'female.' 

They do then revert to the statute that precludes recognition of same-sex marriages, but because they cannot draft a brief worth a damn, they muddy the waters so much that even the Justices will have heads spinning. 

Hopefully mods won't have an issue with the links to the .pdf as they appear on the Court's website (Texas Supreme Court allows viewing of the electronic briefs)...

http://www.supreme.courts.state.tx.us/ebriefs/11/11011402.pdf  (13 page amicus brief received on 5/13)
http://www.supreme.courts.state.tx.us/ebriefs/11/11011401.pdf  (105 page Petition for Review filed by the Atty General on 3/21)

There are some nuggets in there that I feel could be successfully used in appellate efforts on Nikki's behalf, although no ruling will be forthcoming for some time from the TxSupCt if past cases are any indication. 

Quote from: Lisbeth on May 24, 2011, 06:02:03 PM
Deja vu.

March 15, 2002:
Kansas Supreme Court Says Transsexual Marriage Invalid; Rejects Claim for $2.5 Million
http://www.genderadvocates.org/News/GardinerAP.html

This was the first court ruling to invalidate a post-op TS marriage. Now Texas has followed Kansas.

Every anti-same-sex marriage individual, group or organization says marriage is only between one man and one woman.  I've never heard any use the terms male or female.  By legal definition, man and woman could vary from state to state.  Since many things are assumed, it's quite possible many states, if not most or all, have nothing in law that defines man or defines woman.  I'm pretty sure in most cases the medical definition of male and female is assumed to apply to man and woman, respectively.

The implications here are great and this could end up being something very interesting to watch.

Ann, since Nikki was previously married and later divorced before marrying Thomas, would her first marriage now also be considered never to have been valid?  And if so, could Nikki sue the state for her legal expenses in having to pay for a divorce in a marriage that never existed?

The more you look into this the more it seems the state's best option is to just make this thing go away.  Sure, it will upset the phobes, but in the long run it could be a lot easier and cheaper for the courts to figure out a way to keep Nikki's marriage valid but not rule on it being so.

Quote from: Julie Marie on May 25, 2011, 10:04:51 PM
Ann, since Nikki was previously married and later divorced before marrying Thomas, would her first marriage now also be considered never to have been valid?  And if so, could Nikki sue the state for her legal expenses in having to pay for a divorce in a marriage that never existed?

The more you look into this the more it seems the state's best option is to just make this thing go away.  Sure, it will upset the phobes, but in the long run it could be a lot easier and cheaper for the courts to figure out a way to keep Nikki's marriage valid but not rule on it being so.

On the first issue, I would have to look at how the Bill was originally worded...some legislation is retroactive while others are prospective and apply ONLY to the affected matters following the effective date of the legislation.  Obviously my area of focus has historically been in matters associated with defense-related issues in the criminal realm, and I have seen a smattering of retroactive legislation with most of it being prospective so as to avoid ex post facto claims.  But even there, I don't know that the cost-benefit analysis would make it worth pursuing such a claim...it is not unlike a current client who got absolutely screwed on a CVF assessment that does not appear to be consistent with the law at the time of the offense- however, it would cost them as much to litigate the issue as they stand to gain with a favorable ruling on the matter.  And while there is the whole 'right is right, wrong is wrong' component of the equation, litigation STILL costs money...

As to the second issue, never underestimate the amount of time and effort the State will waste to avoid doing the right thing.  We had a number of significant wins against a particular State agency last year and have already had a few more this year, some of which included a federal judge awarding us fees and holding the Chair of a particular agency personally liable.  Yet despite those wins, the State has continued to screw people over in the same manner, basically daring us to sue them yet again...

Other examples are found in some of the cases related to compensation for the actual innocence claims.  A few of the ones they went kicking and screaming on were where someone was on parole and was revoked precisely for the offense that they were later found to be actually innocent on many years later.  But for the new offense, a presumption carries that they would not have been returned to prison.  Yet it took the intervention of the Texas Supreme Court to do the right thing. 

I wish there had been some manner by which the Court could have come up with a decision that was held in abeyance with the suggestion that the parties agree to an amicable split of the proceeds, a significant percentage of which would be held in trust for the benefit of the children.  I still maintain that the Court could also have decided it lacked jurisdiction in the matter, not unlike we saw in the Naylor/Daly divorce when the AG appealed it to the 3rd Court of Appeals...

more comments from bilerico:  http://www.bilerico.com/2011/05/widow_nikki_araguz_denied_death_benefits_by_texas.php

Quote from: Ann Onymous on May 25, 2011, 10:05:35 AM

At the moment, the Family Code does NOT define a man nor define a woman.  It simply says that marriage is between one man and one woman.  There is a provision that precludes recognition of 'same sex' marriages or civil unions, but again, no provision for the determination of sex by statute. 

Quote

But this ruling will be used by many anti-trans cases from now on.

Not necessarily.  As horribly wrong as I feel Judge Clapp's ruling is (and all I have seen discussed is the draft), the reality is that, at this very moment, the only people truly screwed by THIS particular ruling are those subject to the jurisdiction of the 329th Judicial District Court in Wharton County (which obviously includes Nikki).  It is NOT binding upon the balance of the State just as Littleton is not controlling beyond the jurisdictional limits of the 4th Court of Appeals at San Antonio (an area covering 32 counties in South Texas, many of which are not heavily populated outside of perhaps Bexar County and Guadalupe County).  Can it be considered by other Courts as a persuasive holding?  Sure.  But they are not bound by it any more than, as an example, the 14th Court of Appeals at Houston is bound by a holding in the 12th Court of Appeals at Texarkana except and unless the 12th's holding was later affirmed by the CCA in Austin. 

I have been wanting to run an aspect of the decision by others for their thoughts. Ann as you are versed in many of the specifics of the case I would welcome your input.

As stated, Littleton v. Prange may have been considered as case law, but would not be applicable to the matter under discussion

On September 1, 2009 lawmakers changed the Texas family code (Texas Family Code § 2.005(b) to permit an applicant for a marriage license to use a sex change court order to nullify the birth certificate gender. The new law also allowed a driver's license to serve as proof of identity and age.

Thus "Texas law now states that you can get a marriage license after a sex change".

Therefore to me the issues that needed to be adjudicated were:

1. Can the September 2009 ruling be applied to the August 2008 marriage of Nikki Araguz to Thomas Araguz?

2. Was Nikki Araguz legally a female under Texas law at the time of her marriage?

And not to presuppose your response, but I deduce that this answer from a different question may be apropos:

Quote

....I would have to look at how the Bill was originally worded...some legislation is retroactive while others are prospective and apply ONLY to the affected matters following the effective date of the legislation.  Obviously my area of focus has historically been in matters associated with defense-related issues in the criminal realm, and I have seen a smattering of retroactive legislation with most of it being prospective so as to avoid ex post facto claims.

Quote from: peggygee on June 06, 2011, 05:49:13 PM
As stated, Littleton v. Prange may have been considered as case law, but would not be applicable to the matter under discussion

On September 1, 2009 lawmakers changed the Texas family code (Texas Family Code § 2.005(b) to permit an applicant for a marriage license to use a sex change court order to nullify the birth certificate gender. The new law also allowed a driver's license to serve as proof of identity and age.

Thus "Texas law now states that you can get a marriage license after a sex change".

Therefore to me the issues that needed to be adjudicated were:

1. Can the September 2009 ruling be applied to the August 2008 marriage of Nikki Araguz to Thomas Araguz?

2. Was Nikki Araguz legally a female under Texas law at the time of her marriage?

And not to presuppose your response, but I deduce that this answer from a different question may be apropos:

Ironically enough, it is the Warren Chisum amicus brief in the Naylor case (the Travis County same-sex divorce now in the Texas Supreme Court courtesy of the Atty General's challenge) that could provide some interesting challenge material on appeal because it reminded me that the Texas Constitution is at odds with the statute as it relates to the definition of marriage.  Under the Texas Constitution, Nikki is and was clearly a 'woman' at the time of the marriage even if the courts want to split linguistic definitions on whether she is/was female at the time she married Thomas.  The obvious hurdle comes with proving up on appeal that issues not presented were the result of IAC as opposed to a deliberate trial strategy...and if that cannot be shown, it becomes infinitely more difficult to properly address the case on appeal.   

Without going into the specifics of Nikki's personal background, she has been legally female since long before the marriage to Thomas.  However, definitions of certain legal matters sometimes vary based upon the forum in question and it is not uncommon to look at grammatical constructs and legislative histories when arguing a particular fact pattern.  Strictly speaking, Texas statute does not speak to what requirements exist to define one as legally male or female and as a result, you get legislation from the bench like we saw with the two notable Texas cases (yes, issues of activist judges run both good and bad depending on which side of the equation one is on at the time). 

This was NOT Nikki's first marriage in Texas and there was a prior divorce, granted ironically enough by the very same judge who has presided over the pending case. 

The September 2009 revision to statute is not a ruling.  It is law that simply defined the documentation sufficient to prove identity to the Clerk at the time of application for the license.  I failed to see at the time and still fail to see why it needed to be added to the list- after all, a drivers license or other government ID suffices for someone to get married in Texas.  And if one has had SRS, it stands to reason there would have been corresponding changes already made on other documents.  The change to statute does nothing to address the real issue of definitions and I would be reluctant to try and bootstrap an entire argument around an identification document clause.  As to whether it could be backdated would all depend on how the statute was worded...as noted, some are prospective while others are applied retroactively.  I would envision that change as having been a prospective action, but, as I indicated, I have never looked at the original text as approved by Governor Goodhair. 

The biggest problem has been that she was represented by people that wanted to try a CAUSE.  To me, that is problematic because it takes away from the real issue in the case, specifically addressing a suit related to ONE marriage and the estate problem that has followed the tragic death of a spouse.  Not all litigation should be about looking at greater goods and all the other theoretical crap.  The best interests of the CLIENT *absolutely must* take the front seat and should be the ONLY thing that competent counsel is trying to defend or represent... 

Wow .. interesting .. now how many of us are attorney's on this board? 

Quote from: Ann Onymous on June 07, 2011, 09:36:42 AM
Ironically enough, it is the Warren Chisum amicus brief in the Naylor case (the Travis County same-sex divorce now in the Texas Supreme Court courtesy of the Atty General's challenge) that could provide some interesting challenge material on appeal because it reminded me that the Texas Constitution is at odds with the statute as it relates to the definition of marriage.  Under the Texas Constitution, Nikki is and was clearly a 'woman' at the time of the marriage even if the courts want to split linguistic definitions on whether she is/was female at the time she married Thomas.  The obvious hurdle comes with proving up on appeal that issues not presented were the result of IAC as opposed to a deliberate trial strategy...and if that cannot be shown, it becomes infinitely more difficult to properly address the case on appeal.   

Without going into the specifics of Nikki's personal background, she has been legally female since long before the marriage to Thomas.  However, definitions of certain legal matters sometimes vary based upon the forum in question and it is not uncommon to look at grammatical constructs and legislative histories when arguing a particular fact pattern.  Strictly speaking, Texas statute does not speak to what requirements exist to define one as legally male or female and as a result, you get legislation from the bench like we saw with the two notable Texas cases (yes, issues of activist judges run both good and bad depending on which side of the equation one is on at the time). 

This was NOT Nikki's first marriage in Texas and there was a prior divorce, granted ironically enough by the very same judge who has presided over the pending case. 

The September 2009 revision to statute is not a ruling.  It is law that simply defined the documentation sufficient to prove identity to the Clerk at the time of application for the license.  I failed to see at the time and still fail to see why it needed to be added to the list- after all, a drivers license or other government ID suffices for someone to get married in Texas.  And if one has had SRS, it stands to reason there would have been corresponding changes already made on other documents.  The change to statute does nothing to address the real issue of definitions and I would be reluctant to try and bootstrap an entire argument around an identification document clause.  As to whether it could be backdated would all depend on how the statute was worded...as noted, some are prospective while others are applied retroactively.  I would envision that change as having been a prospective action, but, as I indicated, I have never looked at the original text as approved by Governor Goodhair. 

The biggest problem has been that she was represented by people that wanted to try a CAUSE.  To me, that is problematic because it takes away from the real issue in the case, specifically addressing a suit related to ONE marriage and the estate problem that has followed the tragic death of a spouse.  Not all litigation should be about looking at greater goods and all the other theoretical crap.  The best interests of the CLIENT *absolutely must* take the front seat and should be the ONLY thing that competent counsel is trying to defend or represent...

Ann, thank you for your response and input.

And I concur with your assessment of the case becoming one that many would hope set new precedent, ala Roe v. Wade, Brown v. Board of Education, Miranda v. Arizona, and many other landmark court decisions.

Indeed in our tabloid obsessed world the trial took on a life of it's own. Perhaps if the case had been represented with the best interests of the client, as you pointed out, then a different verdict may have been rendered.