Gay Divorce Ruling Upheld

Aug 8, 2012 by

As we noted in the “Same-Sex Divorce Ruling Appealed” posting last Fall, the Texas courts have attempted to avoid tackling the difficult issue of same-sex marriage in the state for many years, but as long as the issue of same-sex divorce keeps popping up in front of them, the issue will difficult to avoid.
 
Same-sex marriage is not legal in the state and Texas appeals courts have ruled in the past that gay couples cannot get divorced in the state. That meant same-sex couples married in other states did not have the legal right to get divorced in the Texas and were forced to obtain a divorce elsewhere. It appeared the Texas appellate court was trying to avoid the issue of same-sex divorce so they would not have to deal with the larger issue of same-sex marriage in the state.

As reported in “Texas Blocks Same-Sex Divorce” late last year, a subsequent ruling by the state’s 5th District Court of Appeals in Dallas reversed a prior decision that allowed gay couples to legally dissolve their marriages in Texas. Predicting that the battle over same-sex divorce in Texas was not over and there would be more rulings to come turned out to be accurate.  A recent ruling by the appellate court in a Travis County same-sex divorce case upheld the divorce of two women who were married out of state and at the same time managed to dodge the issue of Texas’ ban on gay marriage.

Sabina Daly and Angelique Naylor had married in Massachusetts and moved to Austin and adopted a son. District Judge Scott Jenkins orally granted the couple a divorce in February of 2009 despite Texas Attorney General Greg Abbott’s arguments that because same-sex marriage is illegal in Texas, Jenkins lacked the authority to grant the divorce.

Abbott appealed but the 3rd Court of Appeals Assistant Solicitor General James Blacklock ruled that Texas law allows same-sex couples to legally dissolve their union through “voidance,” which also serves to divide all property. Blacklock argued that voidance is recognized nationwide and that Abbott’s request failed to take the couple’s child’s well-being into account. The Daly/Naylor divorce will stand for now, but the issues surrounding same-sex marriage and divorce are far from settled in the Lone Star State.

 

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