Addressing Issues for Same-Sex Divorces in Texas

Many couples have experienced issues related to same-sex divorce–particularly prior to the 2015 U.S. Supreme Court ruling, which legalized same-sex marriage nationwide–because some states allowed for same-sex marriage, but others did not, creating a significant hurdle for couples who had moved from one state to another and who needed a divorce.

The Defense of Marriage Act—adopted prior to the Supreme Court ruling—initially caused confusion and complication with the issue: by dictating that no state was legally obligated to recognize a same-sex marriage from another state, it effectively barred same-sex couples from obtaining a divorce in that new state even if they met the residency requirement. In addition, some of the states that first legalized same-sex marriage waived residency requirements for those couples with respect to divorce, adding more confusion into the mix.

Civil Unions and Domestic Partnerships

Although the 2015 Supreme Court decision dictated that same-sex couples have the fundamental right to seek a marriage or divorce—regardless of their state of residence—this, unfortunately, did not clear up all of the many issues associated with same-sex divorce. While some couples may have legally married, others perhaps filed for a domestic partnership or civil union prior to the 2015 decision, which are often treated differently than marriage by the states.

In Same-Sex Divorce, State Law Is Important

Overall, when it comes to same-sex divorce, what matters is what state law dictates. While Texas did not legalize same-sex marriage prior to the Supreme Court’s ruling in 2015, and thus the same rules that apply to any divorcing couple should also apply to same-sex couples, that doesn’t mean that Texas doesn’t carry its own share of complications.

Still, same-sex couples seeking a divorce in Texas will very generally face the same statutory management of related issues, such as property division. In Texas, any property acquired during marriage is marital property, subject to equal division upon divorce (i.e. it is “community property”).

Similarly, it is important to note the following:

• Texas law will give priority to any prenuptial/premarital agreement (i.e. cohabitation agreements were no longer valid once same-sex marriage was legalized);
• Seeking to argue that a common law marriage existed before a legal union (and thus affects related issues such as property division) could be difficult and take significant documentation to prove that the couple resided in the state of Texas and represented themselves as married over a significant period of time. Also note that some legal marriages could then make common law marriage null and void;

Contact Experienced Texas Divorce Attorneys

If you entered into a same-sex marriage, civil union, or domestic partnership, and are seeking a dissolution here in the state of Texas, you want to work with experienced counsel in order to ensure that it is done correctly and in accordance with the law. Contact our experienced attorneys today to find out how we can help.