Texas same-sex couple argue over split

[The Straight Story]

Texas same-sex couple argue over split


AUSTIN, Texas, Dec. 18 (UPI) -- A same-sex couple who fought for the right to marry in Austin, Texas, now are split on the right to legally end their relationship, lawyers say.

Five years after marrying in Massachusetts, Angelique Naylor's spouse is contesting the split, arguing that since Texas doesn't recognize same-sex marriage, the dissolution shouldn't be recognized either, KXAN-TV, Austin, reported.

"It's not about special rights," Naylor said of her desire to end the union. "It's about equal rights. I want my divorce like the 15 divorce cases that I witnessed today between men and women."

Anne Wynne, a family law expert and equal rights activist, said the decision Texas judges make in Naylor's case and others will have major repercussions for the state, the television station reported Thursday.

"It has huge implications," Wynne said. "It means they get treated like every other citizen in this state."

http://www.upi.com/Top_News/US/2009/12/18/Texas-same-sex-couple-argue-over-split/UPI-64151261148041/

[theoldman]

1. If you never were legally married you cannot get a legal divorce.

If the marriage is considered common law you should be able to get a divorce. Common law marriage is a grey area.

[TexasObserver]

5. Texas has common law marriage, but it would not apply to gay marriage.

There's no gray area in Texas regarding common law for gay marriage. It doesn't exist.

This is a case where one state's courts (Texas) are asked to recognize a marriage in a state (Massachusetts) where gay marriage is allowed, for purposes of having a divorce proceeding in a state where gay marriage is not recognized.

I don't know how this case will come out, but I doubt the state Supreme Court will allow trial courts to hear a divorce case between two people married in another state, when such union is not recognized in Texas. The parties could certainly sue each other to dissolve their partnership in assets, be they houses, cars, or pets. That would not be a divorce, but it would effect a division of property.

The court should hear the suit to divide property, but not apply Texas law of marriage dissolution, and that's probably how this will end up. It is possible a trial court will try to shape a remedy by interpreting the law of the state where the marriage was created. But it's got to pass muster with the Supreme Court of Texas, and I don't think they'll allow gay divorce, since there is no gay marriage recognized by the state, and therefore no case law upon which to base a claim that the marriage is being dissolved. On the other hand, full faith and credit may come into play, but I suspect that issue will not be resolved until someone who is in a gay marriage legally created in another state seeks a divorce, has that action appealed to the State Supreme Court, and has the state SC deny the right of divorce. THEN, the case would be ripe for a federal appeal on constitutional grounds.

Gonna be interesting. I expect the State Attorney General to appeal to the state SC any attempt to have a gay marriage divorce in Texas.

[treestar]

2. Legally this could get really complicated

Some states recognizing the marriages and others not.

Definitely outlines the lack of equal rights.

[tammywammy]

3. Dallas is moving forward on a gay divorce

http://www.dallasnews.com/sharedcontent/dws/news/texassouthwest/stories/100109dnmetgaymarriage.1d5a0d50d.html

Dallas judge paves way for gay couple to get divorce

06:37 AM CDT on Friday, October 2, 2009
By ROY APPLETON/The Dallas Morning News
[e-mail]

In a first for Texas, a judge ruled Thursday that two men married in another state can divorce here and that the state's ban on gay marriage violates the U.S. Constitution.

Both a voter-approved state constitutional amendment and the Texas Family Code prohibit same-sex marriages or civil unions.

Although the case is far from settled, and the state's constitutional ban on gay marriage is a long way from being thrown out, Dallas state District Judge Tena Callahan's ruling says the state prohibition of same-sex marriage violates the federal constitutional right to equal protection.

Texas Attorney General Greg Abbott had intervened in the two men's divorce case, arguing that because a gay marriage isn't recognized in Texas, a Texas court can't dissolve one through divorce.

-snip-


And previous Texas post on this: http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=180&topic_id=60385

[Iggo]

4. So marriage rights may follow divorce rights?

I didn't see this one coming.