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Texas Attorney General Says Married Same-Sex Couple Can't Divorce

On December 15, attorneys representing the State of Texas and a same-sex couple who filed for divorce argued before a panel of three court of appeals judges. The issue before the court was whether a judge can grant the couple a divorce in Texas. State law currently limits marriage to a man and a woman.

The lawyer from the state Attorney General's office told the judges that the state's same-sex marriage ban also prevents same-sex couples who were married in another state from getting divorced in Texas. If the appellate court allows the divorce to go forward, it would be tacitly legitimize same-sex marriage, which would violate the marriage law, the Attorney General lawyer argued. Instead, same-sex couples may dissolve their unions through a process called "voidance."

The couple's lawyer told the panel that Attorney General Greg Abbott waited too long to intervene in the case. The couple had a two-day divorce hearing in February to determine how to divide their property and custody of their five-year-old son.

At the end of the hearing, the judge made an oral ruling granting the women a divorce. The next day, Abbott moved to intervene, saying the judge lacked authority to grant a divorce to a same-sex couple. The judge rejected the Attorney General's intervention, and issued a written divorce decree March 31.

A great deal of the oral arguments centered on whether Abbott had intervened in time. Two of the judges asked the state's attorney whether the divorce was not final the moment the judge orally granted the divorce. The attorney disagreed, and argued that the Attorney General had the power to intervene in the divorce at any time, even after it was resolved, since it challenged a Texas law.

The couple was married in Massachusetts in 2004. The two women later moved to Texas and adopted a son. One of the women filed for divorce last year.

Source: Austin American-Statesman, "Court urged to void Travis County gay divorce," Chuck Lindell, December 15, 2010

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