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Update: TX Same Sex Divorce, One Less Marriage

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By Tanya Roth, Esq. on April 23, 2010 12:45 PM

This blog has been following the developments of two cases of same sex divorce moving through the Texas courts. On April 21, a three-judge panel in the Fifth District Court of Appeals in Dallas, heard oral arguments in the case of two Dallas men who are seeking a divorce from their legal marriage, performed in Massachusetts. The appeal was brought by the Texas Attorney General from a lower court ruling granting the divorce. Texas voters passed a ban on same sex marriages in 2005.

According to the Dallas Morning News, Jody Scheske the attorney for JB (one of the couple seeking the divorce) led off with an ironic argument. If the state is against same sex marriages Scheske told the court, grant the divorce. Then there will be one less gay marriage in Texas. The couple is seeking a divorce, the attorney says, because they have shared property that needs the binding division of assets a divorce carries with it.

The Attorney General's office, represented by assistant solicitor general Jimmy Blacklock and aided by conservative group the Liberty Institute, is pushing for the semantically comforting theory of "voiding" the marriage. They argue a divorce cannot be granted if the marriage does not exist. Hiram Sasser of the Liberty Institute proposed this to reporters outside the courtroom: "Voidance is recognition of what already exists - that there is no marriage," Sasser said.

The Morning News writes Scheske told Justices David Bridges, Kerry P. Fitzgerald and Robert M. Fillmore that JB had no interest in overturning the state's gay marriage ban. "He's already married," Scheske said. "This is and was a valid marriage."

Texas Attorney General Greg Abbott's office had also tried to intervene in the divorce of Angelique Naylor and Sabina Daly, of Austin. The AG's motion came one day after the divorce decree was orally granted in Travis county court. The judge denied the AG's motion to intervene and that case is on appeal.

This case may also be appealed to the Texas Supreme Court, which has the authority to accept or decline the request for a hearing.

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