Family Law Articles

On June 25, 2015, the US Supreme Court issued its ruling in Obergefell v. Hodges and made same sex marriages legal in all fifty states.  While the process for divorce is the same for LGBTQ+ couples as it is for all couples, there are some unique issues that often arise in LGBTQ+ divorces.  Many of the laws in Texas have not been amended to accommodate these unique issues.  This means that the courts have had to resolve these issues and has resulted in different courts reaching different resolutions.  This area of law is developing and rapidly changing, making it absolutely necessary to have an experienced LGBTQ+ divorce attorney.

Common Law Marriage and Same-Sex Divorce

The Obergefell decision made it unlawful for a state to not recognize same-sex marriages performed in other states AND it required all 50 states to permit same-sex marriages to be performed because the right to marry is a fundamental right protected by the US Constitution.  Neither the Obergefell decision, nor Texas law, tells us how to determine when a marriage started if a LGBTQ+ couple were common law married prior to Obergefell. 

The date of the marriage can be important in two BIG ways:

1.            Property and debts acquired during a marriage are presumed to be community property and debts and are therefore subject to division while property and debts acquired before a marriage are separate property and debts and are not subject to division during the divorce.

2.            Spousal support eligibility and duration, for a nondisabled spouse, is based on the length of marriage.

               While it is hard to believe that a couple would disagree about something as fundamental as when they got married, this is exactly what happens in LGBTQ+ divorces often.  To illustrate how this happens, consider this example:

               Amy and Mary fell in love and decided they wanted to spend the rest of their lives together.  They would have had a wedding like any other couple but, in Texas it was not legal to perform a same-sex marriage in 2001, so they did the next best thing.  They invited their friends and family to a ceremony where each vowed their commitment to the other and they exchanged rings.  From February 14, 2001, they lived together as spouses in Texas, and both told everyone they were married.   Over the next 15 years Amy purchased a house and contributed to her retirement while Mary stayed at home and raised their two children.  

 After the Obergefell decision they were excited that they could finally legally marry in Texas, so they got a license and had another wedding ceremony on February 14, 2016.  Unfortunately, in 2023 they decided to get a divorce.   To be common-law married a couple must (1) agree to be married; (2) live together as spouses in Texas; and (3) hold themselves out to others in Texas as married.  Mary is arguing that they were married on February 14, 2001, and Amy is arguing that they were married on February 14, 2016.   If 2001 is the marriage date, then the house Amy purchased and the retirement contributions Amy made since 2001 would be community property and subject to division and Mary might be eligible for spousal support because the marriage is over ten years in length.  If the marriage did not start until 2016 then the house Amy purchased and the contributions, she made to her retirement would be separate property and not subject to division by the court and Mary would not be eligible for spousal maintenance because the marriage is not at least ten years in length.  Furthermore, if the marriage is determined to be less than ten years in length then Mary will also not be able to have social security calculated based on Amy’s income, resulting in a dramatically different amount of social security at retirement.

Another scenario is when a marriage ends by death of one of the spouses and the family of the deceased spouse is trying to define the community estate based on the earlier date while the surviving spouse is trying to have the community estate limited by the later date. 

If a couple wants to avoid this scenario, they can have a Marital Property Agreement or Partition or Exchange Agreement drafted that states what the date of marriage is and prevents the possibility of lengthy litigation later.   A second option is to dissolve the marriage in a Collaborative Divorce process instead of expensive litigation and reach an agreement that is acceptable to both. 

If you find yourself in a situation where divorce is inevitable or you want to be proactive and eliminate any question as to when your marriage began, you need to call Robin R. Zegen, who is experienced in the special issues that an LGBTQ+ Divorce involves. 

Child Custody and Same-Sex Divorce

Child Custody issues arise when one parent is biologically related to the child and the other parent is not.  The best way to handle this situation is for the parent who is not biologically related to adopt the child.  However, if the couple is already at the point of divorce the parent who is biologically related to the child may be unwilling to permit an adoption before the divorce is completed.

Unfortunately, the law favors the parent that is biologically related to the child, often leaving the non-biologically related parent with no rights.  This is true, even if the nonbiologically related parent has been heavily involved in the child’s life.  If the parties go through the Collaborative Divorce Process this can be possibly be remedied.  It is very important to contact an experienced LGBTQ+ Divorce attorney as early as possible in these situations and preferably adopt instead of just signing the birth certificate.  Signing the birth certificate is not a substitute for adoption and does not provide legal rights to the child.

This is a changing area of the law.  It is important that you hire an experienced LGBTQ+ Divorce attorney to help advocate for your rights while the law is reacting to the unique issues that LGBTQ+ couples experience.  Call Robin R. Zegen today for a consultation to learn what you can do to protect your relationship with your child.