Divorce is good for marriage!  At least, that is proving to be true for a gay married couple in Texas, as a current court case here illustrates.

HOUSTON — A judge in Texas paved the way for a court battle over the state’s ban on same-sex marriage when she ruled this week that two men married in another state can get divorced in Dallas.

The state attorney general said Friday that he would appeal the decision, even as gay rights advocates applauded the judge, Tena Callahan of Family District Court, for declaring that the state’s four-year-old ban on same-sex marriages and civil unions violated the right to equal protection under the 14th Amendment.

The case highlights a subtle way gay men and lesbians often face complications when it comes to marriage: gay couples who have managed to marry in the few states where it is legal have trouble divorcing and dividing their property if they move to a state where it is not.

The case in Texas involves two men who married in Cambridge, Mass., in 2006, then moved to Dallas the following year when one of them was transferred by his company, a lawyer for the couple, Peter A. Schulte, said.

The men decided to divorce in January and reached an amicable agreement about splitting up their house, cars and other property. But they had to file for divorce in Texas, because, like most other states, Massachusetts allows only residents to sue for divorce, Mr. Schulte said.

The Texas attorney general, Greg Abbott, a Republican, took the unusual step of intervening in the divorce proceeding last January. Mr. Abbott asserted that the state court could not dissolve the marriage because the Texas Constitution, as amended in 2005, did not recognize any marriage unless it was between a man and a woman.

But Mr. Schulte said his clients, who were identified in court documents as J.B. and H.B., had not sought to challenge the state’s ban on same-sex marriage. They were asking only to split up without having to return to Cambridge, as a heterosexual couple would have been able to do.

“It’s not fair to make them uproot their lives, move back to another state, wait a year and then file for divorce,” Mr. Schulte said.

What a perfect case of Catch 22! The gay couple could not have married in Texas but having got married in another state where the nuptials were legal, they cannot dissolve the marriage in the Lone Star State where they now reside, when things have fallen apart in their relationship. The non-recognition of the marriage makes a divorce impossible – a painful paradox to say the least.  Naturally, many other right wing Texas law makers, Governor Rick Perry and Senator Kay Bailey Hutchison included, have climbed on to the attorney general's "no divorce" band wagon.  The funny thing is that H.B. and J.B., as the two petitioners are named in the case, are not challenging Texas' ban on gay marriage. They just want out of their own union but are being forced to stay in a state of perpetual wedded "non-bliss" by those who wouldn't have allowed them to marry in the first place.

Professor Andrew Koppelman of Northwestern University School of Law has warned of exactly such a scenario in his book Same Sex, Different States.

Must a state in which gay marriage is not legal recognize such a marriage performed in another state? The Constitution does not require recognition in all cases, but it does forbid states from nullifying family relationships based in other states, or from making themselves havens for people who are trying to escape obligations to their spouses and children.

So if Abbott and company have their way in denying J.B and H.B. a divorce, Texas could become a haven for gay men and women who walk away from a legal marriage in another state and default on spousal or child support. And to make matters even more complicated, they could even enter into  heterosexual marriages in Texas  without the fear of being charged with the crime of bigamy!