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Same Sex Divorce Upheld in Texas

The Third Court of Appeals here in Austin issued its opinion today finding that the Attorney General of Texas intervened too late when it appealed from the final divorce decree of Angelique Naylor and Sabina Daly, asserting that section 6.204 of the family code deprived the trial court of subject-matter jurisdiction over the appellees' divorce. See Tex. Fam. Code Ann. § 6.204(c) (West 2006) (prohibiting state agency or political subdivision from giving effect to "right or claim to any legal protection, benefit, or responsibility asserted as a result" of same-sex marriage). The Appellate Court dismissed the appeal for "want of jurisdiction" finding that the State was not a party of record and thus lacked standing to appeal.

So what's this mean?  Well this particular divorce was granted and upheld by the appellate court because the AG intervened after the divorce was granted orally by Judge Jenkins and because neither party raised constitutional challenges to the Family Code or the Texas Constitution.  If either party had, the appellate court would have most likely found that the AG did have standing and would have addressed the constitutional arguments in addition to the procedural ones.  So, the constitutional challenge remains for another day (or case).

Congrats to the Akin and Gump team of Jody Scheske and Jason Steed and of course, to Ms. Daly's attorney, Bob Luther.  Wonderful job done by all and it has truly been a real privilege to be a part of this entire process.  Happy 2011!!

And you can read the opinion here.

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