In Texas, a unique divorce case is raising the attention of lawmakers, all the way up to the attorney general, who has made the claim that one can’t get a divorce in a state that doesn’t recognize the marriage to begin with.

The Austin-American Statesman is reporting that Angelique Naylor and Sabina Daly were married in 2004 in Massachusetts, taking advantage of that state’s law legalizing gay marriage. After they were married, they returned to their home in Austin, where they adopted a child and carried on with their life.

The couple was separated almost a year ago, however, and now they have found themselves in court to determine the terms of their divorce. Whether or not they can even get a divorce, however, is under dispute from some Texas lawmakers.

Texas Attorney General Greg Abbott intervened in the case, in which, according to the couple’s lawyer, a judge had agreed to grant the couple a divorce and ordered that they put that agreement in writing for the court to sign later. This ruling was the culmination of a two-day hearing to determine custody of their child and separation of property.

After the judge granted the divorce, Abbott filed a petition to intervene. He notes his opinion that rather than granting the divorce, the judge should instead declare that the marriage is void. A spokesman for the Attorney General said in a statement that 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.

In essence, Abbott’s position is that the case could be resolved sufficiently by voiding the marriage, rather than granting a divorce. Or as his representation put it, the parties can achieve a legal termination of their Massachusetts marriage, through an enforceable judgment.

We never asked them to grant us a same-sex marriage, said Naylor in response to the intervention. We only asked them to legally recognize that we needed a divorce.

Abbott has intervened in such cases before, as in the case of two men who wanted a divorce in Dallas County. The judge in that case determined that the prohibition on same sex marriage violated the right to equal protection under the U.S. Constitution. Abbott appealed that ruling, and the case is still pending.

The judge in the current case brought up the full faith and credit clause of the U.S. Constitution, which requires that a valid judgment from one state be enforced in other states regardless of the laws or public policy of the other states. Abbott argued that this clause would not come into play in the case.

Texas is among the states that passed a constitutional amendment that defined marriage as being only between a man and a woman. In 2005, the Texas legislature passed it with a majority of 76 percent.

Massachusetts passed the law allowing same-sex couples to marry in November of 2003, in a decision by the highest court in the state.

This entry was posted on Monday, February 22nd, 2010 at 9:44 am and is filed under Divorce Law. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.