04/21/2010 05:12 am ET Updated May 25, 2011

Gay Divorce in Texas

Texas Attorney General Abbott, running for re-election, has chosen his battleground issue. He has intervened in an Austin divorce case involving two women, married in Massachusetts, with an adopted son. The AG claims they may not be legally granted a divorce, and has filed a brief arguing the marriage should be voided. He cites Texas law defining marriage, not divorce. The Attorney General of our State thinks government intervention in the non-violent, orderly wind-down of a relationship is the best use of our State's and his resources. He should leave divorce orders alone, and get back to work on the real problems facing our State, and our children.

In January 2010, Education Week gave Texas a D for its school funding policies. The level of child poverty in Texas is 23 percent (compare with 18 percent nationwide). The National Center on Family Homelessness placed Texas 50th -- last of all states -- in how homeless children fare. In Texas, 9.3 percent of student borrowers defaulted on their federal student loans, reportedly the highest rate in nearly a decade, giving Texas the second highest default rate in the nation. We rank 46th in SAT scores, and last in the percentage of the population 25 and older with a high school diploma. In our weak governor state, with executive power shared with the Attorney General, the AG could be doing something to protect Texas children.

The women who sought and received the divorce were married in 2004 in Massachusetts, lived in Texas and adopted a son, now 4. They have been separated for more than a year, according to the Austin American-Statesman, which reported on the two-day hearing covering property and custody issues. One of the lawyers reported that the judge granted the divorce, ordering the parties to put their agreement in writing and to return to court next month for the Judge's signature.

An AG spokesman provided this statement to the newspaper:"The State maintains that the Court has no legal authority to grant this divorce, and as a result, the State must intervene in this case to defend the Texas Constitution."

The Attorney General misunderstands the Texas Family Code and the Constitution.

If you recognize gay people as "persons," not a "marriage," then gay people married elsewhere may divorce under Texas law. The key legal question under Texas law is: does the following statement apply to "persons"?

"The law of this State applies to persons married elsewhere who are domiciled in this state." Texas Family Code Section 1.103

The Texas AG, if he agrees that gay people are "persons", must read Texas divorce law which applies to "persons," not "marriages." Then, our Texas laws governing custody, support and community property, for example, would apply. The Attorney General seeks to disallow use of Texas law for orderly process in connection with divorce. This has bad implications, especially for use of "voiding" instead of established family law in Texas. Examine the statements of one of the parties, still living in Texas, to the press: "This is the first time in over a year that our family has been at peace... We never asked them to grant us a same-sex marriage. We only asked them to legally recognize that we needed a divorce."

The Texas AG is mis-using his office for partisan, political wedge-issue gain. And, he is mis-stating the law of Texas.

1. Divorce is not the same issue as gay marriage, which is governed by Texas statute, regardless of the Constitutional issues concerning non-recognition of gay marriage. Gay people can be married in certain states. Texas divorce law is controlled by the Texas Family Code Section 1.103.

"The law of this state applies to persons married elsewhere who are domiciled in this state." Texas Family Code Section 1.103. So, the law of Texas clearly applies Texas law to "persons married elsewhere." Gay people are persons. Texas law would apply to any Texas domiciliaries seeking a divorce. The language is clear. This Texas law doesn't apply to "marriages;" rather it applies to "persons".

2 . Orderly divorce and family law allows the peaceful separation of the two disputants, property disposition, payment of taxes and debt, and child support and custody. That's the way civilized society is supposed to function. Ignoring or "voiding" a marriage, suggested by the AG, is not a solution to the orderly wind down of a relationship and care of children. There is no need for the Texas Attorney General to intervene in divorces; the Family Code "person" solution is independent of the Texas Constitutional (Section 32) and U.S. Constitutional (Full Faith and Credit) issues.

3 . The AG's spokesman claimed in Austin that he was defending the Texas Constitution. The Texas Constitution, Sec. 32 is the familiar man and woman language in section (a), and here is section 32(b) "This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage."

We need not utilize or re-hash Art 1, Section 32 of Texas Constitution. Subsection B which disrupts established social order in Texas to an extraordinary degree by permitting no recognition of marriage. The AG, who was in office in 2005, should have caught this mistake. But, regardless of that error, divorce is not the same as marriage. Gay divorce is solved by an honest, straightforward reading of the Texas Family Code, and the recognition that a gay person is, indeed, a "person" under the law.

Barbara Ann Radnofsky is the 2010 Democratic candidate for Texas Attorney General ( She was honored as the Outstanding Young Lawyer of Texas in 1988 and for the past 17 years has been listed in "Best Lawyers in America".