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Gay Divorce Can't be Stopped After Granted, Texas Court Rules

By Minara El-Rahman on January 19, 2011 | Last updated on March 21, 2019

A gay divorce has been upheld in Texas, but not because of all gay Texans are entitled to a divorce.

The 3rd Texas Court of Appeals in Austin ruled that Texas Attorney General Greg Abbott intervened too late in a lesbian divorce.

The case of a gay divorce granted by Travis County District Judge Scott Jenkins to a lesbian couple, the Dallas Voice reports. The court ruled that Texas AG Greg Abbott lacked the standing to appeal the case between Angelique Naylor and Sabina Daly because the state was not a party of record in the divorce case, according to the Washington Post.

Travis County Judge Scott Jenkins granted the divorce decree orally on February 10, 2010, as we wrote about previously in our Law & Daily Life Blog. Texas AG Greg Abbott filed papers to intervene against the divorce the following day before the written divorce decree was entered.

So while a gay divorce has been upheld in Texas, it was because of procedural issues, not constitutional ones. 

As a result, gay rights advocates are hesitant to celebrate because it leaves the question of gay divorce open for now. Austin attorney Jody Scheske, who handled this case said: "It's complicated and to some extent remains unsettled and that's unfortunate. If you have a legal marriage you should have the same equal right to divorce as all other married people have."

Currently, there is a ruling by the 5th Texas Court of Appeals in Dallas that states that gay couples legally married in other states can't get a divorce in Texas. In that case, the Dallas judge had not granted the divorce decree and Texas AG Greg Abbott intervened before a decree was given.

Having two different outcomes for gay divorce in the state will probably confuse the general public. So for now, it remains to be seen how Texas plans to resolve the gay divorce issue.

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