Same Sex Divorces in Texas: Essential Information

Most people in the United States are aware that same-sex marriages were made legal by the Supreme Court in 2015 in ruling that bans on same sex marriages were illegal and unconstitutional. There is still some confusion as to how that affects citizens of the State of Texas. Are same sex marriages legal in Texas today? What was the case before this Supreme Court ruling in 2015? The Law Office of Bryan Fagan would like to discuss this subject with you all in today’s blog post.

Background of Same Sex Marriage in Texas

Some states had legalized same sex marriage prior to 2015, but Texas was not one of those States. If you were a person in a same sex marriage and had moved to Texas prior to 2015 you would not have been able to get a divorce in Texas, much less get married here. The Texas Family Code prohibited the recognition of a same sex marriage. It made sense, based on the law at the time, that if you could not get married to a member of the same sex in Texas that you also could not get a divorce. With the pronouncement that same sex marriages were to be made legal in all fifty states, the Supreme Court changed long standing Texas law on this subject.

Same Sex Divorces: Do they work like opposite sex divorces

Since the laws that apply to “traditional” marriages apply now to same sex marriages, then it would stand to reason that the laws on divorce apply equally across the board. This means that rules of community property that applied previously would continue to be applicable to same sex marriages. How your debts, property and other assets would be split upon divorce are governed the same for you as a person in a same sex marriage as they would if you were a person in a “traditional” marriage.

Essentially, any income that you earned during the course of your marriage would be considered part of the community estate and subject to division upon divorce. Income means both your salary and wages earned while at your day to day job, as well as income generated by your investments and your retirement savings accrued during the marriage. If you and your spouse purchased a home during the course of your marriage and that home built up equity, then that equity is also subject to division at the time of your divorce. Likewise, if you and your spouse accrued any debts during your marriage then those debts would need to be dealt with and divided prior to a court granting you a divorce.

For those of you reading this blog post who were married outside the State of Texas, your prenuptial agreements made in other states will now be honored here as well. Logistically speaking you should take care to reference your prenuptial agreement in your Original Petition for Divorce and then attach the document as an exhibit to your Petition. Upon the conclusion of your divorce your prenuptial agreement should be attached to your Final Decree of Divorce as an exhibit and be referenced within the document itself.

What does the legalization of same sex marriages mean for common law marriages in Texas?

Common law marriage exists in Texas and therefore common law same-sex marriages are also available in our state. The same requirements for a traditional common law marriage apply for same sex common law marriages:

  1. You and your common law spouse must agree to be married
  2. You and your common law spouse must have lived together in Texas
  3. You and your common law spouse must have represented to others that you and he/she were married

What happens if you consider your marriage to have happened prior to 2015?

The Supreme Court determined that their 2015 ruling could apply retroactively to marriages that existed in Texas or any other state long before 2015. When it comes to common law marriages in Texas there is no definite answer to this question but it would stand to reason that if these three prerequisites are met for persons prior to 2015, an argument could be made that a valid common law marriage was in existence.

It is important to note that if you and your common law spouse terminate the marriage relationship and do not reconcile within two years, it is presumed under the law that no common law marriage ever existed.

If you are interested in a common law divorce it is essential to know when your marriage actually began. We have already discussed some of the difficulties that persons in same sex marriages have experienced in nailing down a specific date for the beginning of their marriage due to differing laws on acknowledging same sex marriage. If you had lived in a state that honored both same sex marriages and common law marriages it is likely that you have a piece of paper that certifies when your common law marriage began. If you lived in a State like Texas that honored common law marriages but not same sex marriages then you would need to present evidence as to when your common law marriage began. This will affect your or your spouse’s ability to collect spousal maintenance and retirement benefits under certain retirement plans.

Questions on same sex marriages and divorce? Contact the Law Office of Bryan Fagan

The law regarding same sex marriage changed virtually overnight in Texas when the Supreme Court issued their decision on this subject back in 2015. With it, courts, county clerks and attorneys across our State had to scramble to keep up with the changing times and changing laws.

If you have any questions on this subject or are interested in speaking to an attorney about a divorce please do not hesitate to contact the Law Office of Bryan Fagan. Our office represents clients from across southeast Texas and would be honored to do the same for you. A free of charge consultation is available with one of our licensed family law attorneys six days a week.

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