A same-sex couple married in Washington, where same sex marriage is legal, filed a petition last month in Bexar County seeking a divorce.
A hearing on the matter is set for Thursday.
At issue is whether a divorce to a same-sex couple can legally be granted since Texas does not recognize gay marriage.
Absent intervention by the Texas Supreme Court, that will be the decision facing a Bexar County judge.
"What the state will argue is that there's no marriage that can be recognized and to grant a divorce necessarily requires you to recognize the marriage," said attorney Neel Lane.
Lane, who is not representing either party in the lawsuit, is an advocate of gay marriage and was part of a federal lawsuit in federal court in San Antonio last month.
He said the couple has a 13-month-old child and his concern is similar to a concern expressed by federal Judge Orlando Garcia is last month's case.
Lane said since Texas does not recognize same-sex marriage, the child would be unprotected if a divorce were to be granted.
"Bottom line," Lane said, "if you are against same-sex marriage, you should be all for same-sex divorce."
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