Gay couple divorces in Texas

By Advocate.com Editors

Originally published on Advocate.com March 08 2003 12:00 AM ET

The state of Texas may not recognize marriages for same-sex couples, but that didn't stop a judge in southeast Texas from granting a gay couple's divorce earlier this week. Judge Tom Mulvaney of the 279th district court signed a divorce decree on Monday for Beaumont residents Russell Smith, 26, and John Anthony, 34. Smith and Anthony were granted a license of civil union in Vermont in February 2002. Mulvaney said the case was a first for him, and others in the legal profession said they think it is the only such divorce outside Vermont.

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 a year before a final divorce hearing, the The [Beaumont] Enterprise reported. 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.

Smith's lawyer, Ronnie Cohee, said that because the Vermont union was legally binding, it needed to be legally dissolved. She said her legal justification relied on the U.S. Constitution's "full faith and credit clause," which requires states to recognize marriages and other contracts from other states. Cohee also said that even though Texas law refers to a husband and wife when talking about marriage, state law refers to "parties" when addressing dissolution.

Richard Carlson, a law professor at South Texas College of Law in Houston, said that because the divorce was sought by agreement, appeals in the case are unlikely. But if an appeal were to be made to a higher court, Carlson said, he would expect that court to simply not recognize the marriage as binding.