Divorce attorneys in Chicago are probably keeping an eye on a disputed case involving a same-sex couple that legally married in Massachusetts and now wants a legal divorce in their home state of Texas, as reported by the Austin American-Statesman.
In Illinois, it is not necessary to have been married in the state to seek a divorce here according to state law. FindLaw states that Illinois law specifically prohibits same-sex marriage, but it's not clear if that also includes divorce.
The Texas case shows that same-sex divorce is a relatively untested area of law in most states.
The article reports that the couple, 39-year-old Angelique Naylor and 41-year-old Sabrina Daly, returned to Austin, Texas after their marriage in Massachusetts and adopted a child. They've been separated for more than a year and want a divorce, but Texas Attorney General Greg Abbott argues that they may not get one since the state defines marriage as between a man and a woman.
A state district judge presided over a hearing to determine child custody and division of marital property, which also included the agreement to divorce. The judge orally granted the divorce and asked the parties to put the agreement in writing and return in March for his signature, according to Ms. Naylor's attorney as cited by reporters.
But due to the actions of Mr. Abbott, the court lacks legal authority to grant the divorce. Ms. Naylor was quoted in the article with regard to the AG's decision:
"We never asked them to grant us a same-sex marriage. We only asked them to legally recognize that we needed a divorce."
Mr. Abbott, however, maintains that by granting the divorce the court would be violating the Texas Constitution. Interestingly, the attorney for Ms. Naylor's ex-partner supports Mr. Abbott's position. Ms. Daly wants the court to instead declare the marriage void, according to the article.
It will be interesting to see how this case plays out.
Developments in Same-Sex Marriage Law (FindLaw)
No Same-Sex Marriage in Texas, but What About Divorce? (FindLaw Common Law)