Divorce dilemma: Texas says gays can't get divorce

[April 20, 2010]  DALLAS (AP) -- After the joy of a wedding and the adoption of a baby came arguments that couldn't be resolved, leading Angelique Naylor to file for divorce. That left her fighting both the woman she married in Massachusetts and the state of Texas, which says a union granted in a state where same-sex marriage is legal can't be dissolved with a divorce in a state where it's not.

A judge in Austin granted the divorce, but Texas Attorney General Greg Abbott is appealing the decision. He also is appealing a divorce granted to a gay couple in Dallas, saying protecting the "traditional definition of marriage" means doing the same for divorce.

A state appeals court is scheduled to hear arguments in the Dallas case on Wednesday.

The Dallas men, who declined to be interviewed for this story and are known only as J.B. and H.B. in court filings, had an amicable separation, with no disputes on separation of property and no children involved, said attorney Peter Schulte, who represents J.B. The couple, who married in 2006 in Massachusetts and separated two years later, simply want an official divorce, Schulte said.

The drawn-out process has been frustrating for Naylor, who says she didn't file for divorce as an equal rights statement -- she just wants to get on with her life.

"We didn't ask for a marriage; we simply asked for the courtesy of divorce," said Naylor, 39, of Austin, who married Sabina Daly in Massachusetts in 2004.

That year, Massachusetts became the first state to let same-sex couples tie the knot. Now, Connecticut, Iowa, New Hampshire, Vermont and the District of Columbia also allow them.

Gay and lesbian couples who turn to the courts when they break up are getting mixed results across the nation. A Pennsylvania judge last month refused to divorce two women who married in Massachusetts, while New York grants such divorces even though the state doesn't allow same-sex marriage.

"The bottom line is that same-sex couples have families and their families have the same needs and problems, but often don't have the same rights," said Jennifer Pizer, a lawyer for Lambda Legal, a national legal organization that promotes equal rights for gay, lesbian, bisexual and transgender people.

"It really is an unenviable position that the courts have put these couples in," said Karen Loewy, an attorney at the Gay and Lesbian Advocates and Defenders.

Abbott, a Republican seeking re-election, declined to be interviewed for this story. He has argued in court filings that because the state doesn't recognize gay marriage there can be no divorce, but a gay or lesbian Texas couple may have a marriage voided. Attorneys representing such couples argue that voiding a marriage here could leave it intact in other states, creating problems for property divisions and other issues.

"OK, you're recommending voidance, but how does that work?" asked Jennifer Cochran, Naylor's attorney. "Is it only void in Texas and can you void a marriage that's valid in another state? The attorney general I feel didn't answer those questions."

In 2005, Texas voters passed a constitutional ban on same-sex marriage by a 3-to-1 margin even though state law already prohibited it. Abbott has said he is appealing the Dallas divorce ruling for two men to "defend the traditional definition of marriage that was approved by Texas voters."

Abbott disagrees with the judge in that case, who ruled in October that the same-sex marriage ban violates equal rights guaranteed by the U.S. Constitution.

Kelly Shackelford, chief counsel for the conservative Liberty Institute in Plano, called that decision "outrageous judicial activism." The institute has filed a friend of the court brief to the appeals court on behalf of the two Republican state lawmakers who co-sponsored the amendment banning gay marriage: state Rep. Warren Chisum and former state Sen. Todd Staples.

"It's a backdoor run at establishing same-sex so-called marriage against the people's vote," Shackelford said. "Once you grant the divorce, you are recognizing that there was a marriage."

Dallas divorce attorney Tom Greenwald said he's advising gay couples to wait and see how things play out in the courts.

"Getting the court of appeals to even accept the issue is a step in the right direction in getting some clarity on this," he said. "We just don't know how to treat it."

As for Naylor and Daly -- the latter declined to comment -- they've been trying to figure out what to do since separating in 2007 amid escalating arguments.

The couple, who had real estate-related businesses and renovated homes, toyed with the idea of one of them moving to a state where gay marriage is legal until a divorce is finalized, but that didn't seem practical.

Naylor said that eventually, she and Daly worked out a custody arrangement for their now 4 1/2-year-old son. Naylor said that when she heard about the Dallas divorce, she thought it was worth a try and filed for her own, even though several attorneys she spoke with weren't so sure.

"They said it's too up in the air, wait and see for appeals," Naylor said. "I didn't have a lot of time to wait and see."

[Associated Press; By JAMIE STENGLE]

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