Texas Attorney General Intervenes in Massachusetts Couple’s Plea for Same-Sex Divorce

TRAVIS COUNTY, TX – In a case of first impression in Travis County, a same-sex couple who married in Massachusetts has filed for divorce in Texas (American-Statesman).  Texas Attorney General Greg Abbott has intervened in the same-sex divorce case, arguing that because the two women were married in another state, Texas may not legally grant them a divorce since state law defines marriage as between a man and a woman.

Angelique Naylor, 39, and Sabina Daly, 41, married in 2004 in Massachusetts, where gay marriage is legal. They returned to their home in Austin and together adopted a son, who is now 4. They have been separated for more than a year.

Last week, at the close of a two-day hearing before state District Judge Scott Jenkins on how they should divide their property and share custody of their son, the two reached an agreement that in part called for them to divorce.  According to Naylor’s lawyer, Jennifer Cochran, Jenkins granted the divorce orally and ordered the parties to put their agreement in writing and return to court next month for his signature.

“This is the first time in over a year that our family has been at peace,” said Naylor, who still lives in Austin. Daly has moved to San Antonio with their son.  “We never asked them to grant us a same-sex marriage. We only asked them to legally recognize that we needed a divorce,” Naylor said.

Abbott spokesman Jerry Strickland said in a statement, “The State maintains that the Court has no legal authority to grant this divorce, and as a result, the State must intervene in this case to defend the Texas Constitution.”

Abbott’s petition in intervention was filed Thursday after the agreement was reached in court. In it, Abbott notes that after Naylor filed for divorce in December, Daly argued that divorce was the wrong legal remedy for the couple and that the court should instead declare the marriage void.

“Petitioner (Naylor) is asking the court to recognize and enforce a marriage between two persons of the same sex which is contrary to the law and public policy of the state,” wrote Luther, Daly’s lawyer.

This is not the first time that Abbott’s office has sought to intervene in a Texas same-sex divorce case.  He did so before state District Judge Tena Callahan in Dallas County ruled in October that two men could divorce in Texas.Callahan ruled in that case that the prohibition of same-sex marriage violates the right to equal protection under the U.S. Constitution.  Abbott has appealed the ruling. It is pending in the state’s 5th Court of Appeals.

Texas is one of numerous states that have passed constitutional amendments banning gay marriage. The Texas amendment, passed by the Legislature in 2005 and approved by 76 percent of voters, defines marriage as between one man and one woman.

It is essential that couples meet with an attorney to discuss the ramifications of marriage prior to tying the knot in a state that recognizes marriage equality.  A marriage here in Massachusetts can affect the parties rights with respect to child custody, property,  inheritance, government benefits, military services, etc.

Secondly, after obtaining a marriage license here in Massachusetts, many couples find themselves completely unable to obtain a divorce after returning or moving to a state that refuses to recognize their marriage.  Because Massachusetts (like many states ) imposes a residency requirement on divorce petitioners, one spouse would technically be forced to establish residency here in Massachusetts in order for the couple to obtain a divorce.  As a result, couples all over the country find themselves in matrimonial purgatory.

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