New trial ordered in "gay divorce"

BY Advocate.com Editors

April 01 2003 12:00 AM ET

A Beaumont, Tex., judge has vacated an order this week that allowed a gay couple to divorce as a means of dissolving a civil union they'd had performed in Vermont last year. State district judge Tom Mulvaney ordered a new trial two days after Texas attorney general Greg Abbott determined that the divorce was illegal. Abbott said that John Anthony, 34, and Russell Smith, 26, both of Beaumont, could not be divorced because under Texas law they couldn't be legally married. "Texas law does not provide for a dissolution of a civil union, and a divorce cannot be granted where a marriage never existed," Abbott said.

Under Vermont law a civil union is legal between two members of the same sex, although a marriage must be between a woman and a man. Texas does not recognize same-sex unions. Smith, who petitioned for the divorce, said getting the divorce in Texas was expensive and strenuous. But getting the union dissolved in Vermont would have required Smith or Anthony to live in that state for at least one year before a final dissolution hearing could be conducted.

Smith said he had to get a legal divorce for financial reasons. The couple did not file joint income tax returns, but they did have joint auto and life insurance. The two also ran several businesses together, and the division of their assets and properties was done by agreement. His attorney, Ronnie Cohee, said that although Texas law refers to a husband and wife when talking about marriage, state law refers to "parties" when addressing dissolution.

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