Same-sex divorce battle looms in Texas

The attorney general of Texas is appealing a decision to allow a gay couple in Dallas to divorce, saying protecting the "traditional definition of marriage" means doing the same for divorce.

The couple was married in Massachusetts in 2006. Attorney General Greg Abbott says 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.

Massachusetts became the first state to let same-sex couples marry in 2004. Now, Connecticut, Iowa, New Hampshire, Vermont and the District of Columbia also allow it.

Texas does not allow gay marriage.

A state appeal court is scheduled to hear arguments in the case on Wednesday.

The couple, 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 lawyer Peter Schulte, who represents J.B. The two men separated in 2008 and now want an official divorce, Schulte said.

Abbott is also appealing a divorce granted by a judge in Austin to Angelique Naylor and her same-sex partner, who also married in Massachusetts, in 2004, and who separated in 2007. 

'It really is an unenviable position that the courts have put these couples in.' —Karen Loewy, Gay and Lesbian Advocates and Defenders

The drawn-out process has been frustrating for Naylor, who says 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.

Mixed results

Gay and lesbian couples who turn to the courts when they break up are getting mixed results across the country.

A Pennsylvania judge in March refused to divorce two women who married in Massachusetts, while New York grants such divorces even 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 legal organization that promotes equal rights for gay, lesbian, bisexual and transgender people.

"It really is an unenviable position that the courts have put these couples in," said Karen Loewy, an attorney at the Gay and Lesbian Advocates and Defenders.

Abbott, a Republican seeking re-election, declined to be interviewed for this story.

He has argued in court filings that because the state doesn't recognize gay marriage there can be no divorce, but a gay or lesbian Texas couple may 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.

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.

Dallas divorce lawyer Tom Greenwald said he's advising gay couples to wait and see how things play out in the courts.

"Getting the court of appeals to even accept the issue is a step in the right direction in getting some clarity on this," he said. "We just don't know how to treat it."