Divorce dilemma: Texas says gays can’t get divorce

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 said 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, as well as 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 Wednesday.

The Dallas men, who 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 frustrated Naylor, who said 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, who married Sabina Daly in 2004.

That year, Massachusetts became the first state to let same-sex couples tie the knot. Now, Connecticut, Iowa, New Hampshire, Vermont and Washington, D.C., 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, while New York grants such divorces, 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 organization that promotes equal rights for gay, lesbian, bisexual and transgender people.

Abbott, a Republican seeking re-election, has argued in court filings that because the state doesn’t recognize gay marriage there can be no divorce, but a gay or lesbian couple can 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.

“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,” asked Jennifer Cochran, Naylor’s attorney.

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.

“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.”

Naylor and Daly have 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 eventually, she and Daly worked out a custody arrangement for their 4-year-old son. Naylor said 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.”