Issues to Consider for Same-Sex Couple Divorces

The idea of marriage has forever been changed since 2015 when same-sex couples were granted the legal right to marriage in Texas. In many ways, same-sex couples have gained the same protection as heterosexual couples have, however there are a few issues that still need to be ironed out when it comes to same-sex divorces.

Child Custody Considerations

Unfortunately this is the messiest part of same-sex marriage divorces, child custody. Being married does not mean you have parental rights to a child that is not biologically yours. Though the non-biological parent may see themselves as a parental figure, if they did not legally adopt the child, it is hard to get any legal right to custody. We have written a much longer blog post that you can read all about the challenges of same-sex custody disputes, here.

Same-Sex Couples & Common Law Marriage

Establishing common law marriage is hard, even for heterosexual couples, pinpointing an exact date of marriage can be difficult. Same-sex couples are like heterosexual couples and need to prove a common law marriage by meeting requirements such as residing in Texas, agreeing to marriage and presenting themselves as a married couple.

The same thing applies for common law divorces, couples must gather evidence to prove a date of marriage and establish that a common marriage had occurred. In Texas, common law marriage do have an “expiration date” and if you have not lived or been with your partner for two years then the marriage is considered void. Same-sex divorces are muddled because many couples have cohabitated, often for years or decades, prior to legally being able to marry and thus, make pinpointing a date of marriage difficult.

Property Division

Texas is a community property state, and the time frame is important for division of community property in the event of a divorce. Because same-sex couples weren’t legally allowed to be married, and many of them were living together or established domestic partnerships long before marriage was an option, pinpointing a time that property began acquiring is difficult. So it’s not exactly clear what happens in a situation where the couple has been living together since before July of 2015 and now want to get divorced.

Texas courts will divide community marital property in a “just and right” manner, but this does not necessarily mean that it will be equal. It can be specifically hard to divide and determine what is “separate” property for the purpose of asset division. It is important that you retain a lawyer that specializes in same-sex divorces for all of these situations.