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Understanding the nuances of same-sex divorce in Texas

On Behalf of | Oct 13, 2021 | Family Law |

In Texas, same-sex couples who want marital property rights must fulfill specific requirements for the union to be legal in the state. How long they have been married, if they were married in another state and did not legally divorce, or if they had a common law marriage in the Lone Star State but then broke up, will factor into decisions the court will make during divorce proceedings.

Although same-sex marriage became the law of the land back in 2015, there are complex issues that may arise for same-sex couples in Texas over property division, custody and support issues during divorce.

The three-pronged test

Before the 2015 Supreme Court ruling that legalized same-sex marriage based on constitutional grounds, the state of Texas did not recognize such unions and therefore also did not grant same-sex divorce. This was the case regardless of whether the couple married within the state or elsewhere.

All that has changed now. Same-sex couples may legally enter into a common law or informal marriage that may or may not be registered, as long as they satisfy three requirements that they:

  • reside in the state of Texas
  • state that they are married
  • agree to be married

These requirements must happen at the same time. The minimum age that an individual may enter into a common law marriage is 18, and they must also be legally single. If there is a dispute over when the marriage began, there must be evidence to prove the commencement of the marriage. Couples may also sign under oath a Declaration of Informal Marriage at the county clerk’s office.

Challenges that may arise in same-sex divorce

Same-sex couples who are divorcing will follow the same laws regarding property division, custody or visitation rights and support issues as heterosexual couples. Complications arise, however, if there are questions about how long the couple has been together.

Texas is a community property state, meaning that the judge will likely divide all marital property equally. But if the couple was together before their marriage was legal or if there is a dispute over when it began, any property acquired during that time is considered separate and not divisible, even if the couple used common funds to acquire it. This can lead to an unequal property settlement.

For the same reasons, decisions about alimony awards may be difficult to determine, and establishing parental rights may be challenging if the couple adopted or had a child before the union became legal. For residents of Kaufman County and surrounding areas, it is important to know where to go to get more information on these and other issues.