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Update: AG too Late in TX Same Sex Divorce Case

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By Tanya Roth, Esq. on April 02, 2010 10:45 AM

As discussed in prior posts on this blog, the question of how to handle same sex divorce in a state that does not recognize same sex marriage is an on-going dilemma for the courts, attorneys and soon to be un-married folk of Texas. The State Attorney General Greg Abbott has attempted to intervene in the two same sex divorce cases that are currently in the courts of the state. The first, in Dallas, is on appeal before the Texas 5th District Court of Appeals. The trial court judge in that case did not allow the AG to intervene. In the second, in Austin, the judge has just ruled that Abbott was a day late. Literally.

The Austin American-Statesman reports that on March 31, Judge Scott Jenkins of the Family Law court has decided that Abbott's intervention came too late to affect the divorce case of Angelique Naylor and Sabina Daly. By the time the AG had filed papers, the judge in the case had already made his oral ruling, which in Travis County family law cases is final, so as to allow the parties the quickest resolution possible. Although on opposing sides for a divorce hearing, Naylor's lawyer, Jennifer Cochran, and Daly's lawyer, Bob Luther, both argued that because Judge Jenkins had orally rendered final judgment by the time Abbott sought to intervene, Abbott had no legal standing to enter the case. The judge agreed.

Further, the American-Statesman writes that the judge noted the Dallas divorce case where the AG also sought to intervene will be the one to establish legal precedent in the area. In that case, State District Judge Tena Callahan in Dallas County ruled last fall that the two men could indeed divorce in Texas. Judge Callahan also ruled that the state's prohibition of same-sex marriage violates the right to equal protection under the U.S. Constitution. Attorney General Abbott has appealed this decision to the Court of Appeals in Dallas, which is scheduled to hear arguments in the case on April 21.

Judge Jenkins told the parties before him that he believes that case will likely reach the Texas Supreme Court which will deliver the final word on the legality and future of same sex divorce in the Lone Star State.

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