Texas Judge Grants, Rescings CU Divorce

by Paul Olsen

      The relationship between Russell Smith and John Anthony of Beaumont Texas gives new meaning to the phrase “on again, off again.”
      Smith, 26, and Anthony, 34, came to Vermont early last year to enter into civil union, then broke up and had their civil union dissolved by Texas judge Tom Mulvaney, only to find that the “divorce” had been overturned when Texas attorney General Gregg Abbott ruled the judge’s decision was illegal.
      Abbott asked Mulvaney to set aside his ruling because Texas law does not provide for civil union dissolution and divorces cannot be granted to same sex couples. “Because these two men were never married under either Vermont or Texas law, they cannot legally petition for divorce under the Texas Family Code,” he said. “The court’s final decree of divorce is void as a matter of law.”
      Mulvaney’s original decision was based primarily on the U.S. Constitution’s full faith and credit clause, which requires states to honor marriages performed in any other state, among other legal certifications.
      Mulvaney complied with Abbott’s request to vacate his order concluding, “... the Attorney General of the State of Texas has intervened and presented a legal argument opposing the granting of a divorce, arguing that this court lacks subject matter jurisdiction. It is the court’s opinion that this case should be re-litigated, particularly with respect to the legal issues of subject matter jurisdiction and the Full Faith and Credit Clause.”
      The Smith/Anthony case provides an example of the legal quagmire gay and lesbian couples from outside Vermont may face if they enter into civil union in the state and their relationship ends. They want to split up but remain legally joined because their civil union cannot be dissolved in their home state.
      This unique situation is because Vermont’s civil union law was modeled after the state’s marriage statutes. Non-Vermont couples can marry in the state but residency is required to divorce.
      To be eligible for a civil union, individuals must be of the same sex, be 18 or older, and may not be married or a member of another civil union.
      Town clerks issue civil union licenses. After a judge, justice of the peace, or member of the clergy certifies the union, couples are entitled to more than 300 state provided benefits including hospital visitation, victim’s compensation rights, inheritance rights, family leave benefits, adoption, public assistance, state tax benefits, and marital communication privileges. The law does not apply to federal benefits like Social Security.
      According the to Vermont Health Department 5,405 couples have been joined in civil union since the landmark law went into effect two years ago. Of those couples, 4,585 were from outside Vermont.
      As they do in divorces, Vermont family courts administer the “dissolution” of civil unions. According to the “Guide to Civil Unions” published by Vermont’s Secretary of State the dissolution of civil unions “is subject to the same substantive rights and obligations that are involved in the dissolution of marriage, including residency requirements.”
      As the current residency requirement is six months, the question of how other state courts may deal with terminating civil unions from Vermont is becoming clear, and the news is not good. Texas officials overturned Mulvaney’s divorce decree in the Smith / Anthony case and an Appellate Court in Connecticut also ruled that it couldn’t legally dissolve the civil union of a gay couple from Connecticut. An appeal of that case was not heard because one of the partners eventually died.
      On the plus side, in January a West Virginia judge granted a legal dissolution of their Vermont civil union to two women which will, apparently, stand. State circuit court judge David P. Born granted a divorce decree to Sherry Gump and Misty Gorman, who had been united in civil union on July 3, 2000 – among the earliest civil unions.
      According to a report in Gay City News, two years later, Gorman filed a ‘complaint’ requesting the dissolution of the civil union due to irreconcilable differences. Gump responded in December, agreeing to the dissolution. There were no unresolved property issues, and no children involved, so the judge granted the divorce, while noting that a civil union is not a ‘marriage,’ and that West Virginia’s divorce laws did not really apply. Gump had taken her partner’s last name, and the judge’s decree also restored her right to use her original name.
      The order was signed on December 19, 2002, but wasn’t filed until January 3, 2003. There is no report of any challenges to the decree during the 30-day appeal period.

Paul Olsen lives in Colchester and also writes for In Newsweekly.