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Can judge deny same sex divorce Texas? That question still crosses people’s minds even though same sex marriage has been legal for years. Some couples worry that a judge’s personal views could influence the outcome. While Texas law treats same sex and opposite sex marriages the same, certain situations can cause delays or raise concerns during divorce. Knowing how the process works and what rights you have can help you avoid unnecessary stress.
Texas Divorce Law Applies to All Married Couples
Texas Family Code doesn’t treat same sex marriages differently. Once the Supreme Court legalized same sex marriage, it also guaranteed equal access to divorce.
A Texas judge cannot deny a divorce just because both spouses are the same sex. If you meet the requirements, you have the right to end your marriage. That includes:
- Living in Texas for at least six months
- Filing in the correct county, usually where one spouse lived for the past 90 days
- Providing legal grounds for the divorce, such as insupportability or cruelty
As long as those conditions are met, you’re eligible for a divorce like any other couple.
Where Legal Problems May Appear
Even though the law applies equally, there are still some areas where same sex couples may run into delays or complications. These are not outright denials but they can slow the process.
1. Judges With Personal Beliefs
Some judges may not support same sex marriage. They cannot legally block your divorce because of their personal views. But they may make the process more difficult through procedural delays, longer hearings, or stricter document reviews.
If this happens, your lawyer can request a different judge or file a complaint. Texas law does not give judges the right to delay divorce based on sexual orientation.
2. Jurisdiction Issues for Out-of-State Marriages
Couples who married outside Texas before 2015 may face questions about jurisdiction. Before the Supreme Court’s decision, Texas did not recognize same sex marriages. Some older cases were dismissed because the court said the marriage did not exist under state law.
That is no longer true. Today, Texas courts must recognize same sex marriages regardless of where they took place. If your case gets rejected due to this issue, it’s likely due to a legal mistake that can be appealed or corrected.
3. Length of Marriage and Property Division
Dividing property can get complicated in same sex divorces. Texas is a community property state, but property division depends on the legal start of the marriage.
For couples together before 2015, Texas courts may only count assets gained after the legal marriage date. That can cause unfair outcomes if one partner contributed financially for years before marriage was recognized.
Judges cannot deny the divorce, but they might divide assets based on a shorter marriage length. To avoid this, some couples include informal partnership records, cohabitation agreements, or other proof of shared finances before marriage.
4. Child Custody Disputes
Child custody often brings tension in any divorce. Same sex couples may face extra legal hurdles, especially if one parent isn’t biologically related to the child.
Texas courts prefer arrangements that benefit the child. But they look closely at legal parent status. If only one spouse is the legal parent—through adoption or biology—the other may need to prove a parent-child relationship or seek conservatorship rights.
Judges do not block divorces due to custody issues. But they may delay final orders until parenting matters are sorted. You may need additional legal filings to protect your rights as a non-biological parent.
What You Can Do if a Judge Delays Your Divorce
If your divorce feels stalled for reasons unrelated to the law, take action. Judges are not allowed to apply personal views in legal rulings. Texas law gives you ways to respond:
File a Motion to Substitute the Judge
If you believe your judge is biased, you can file a motion to recuse or disqualify them. This is rare, but it’s an option if you think your case is being handled unfairly.
Appeal or Request a Hearing
If your divorce petition is denied or stalled, your attorney can appeal the ruling or ask for a hearing. Higher courts can review and overturn decisions made in error.
Hire a Divorce Attorney With Same Sex Case Experience
Not all divorce lawyers understand the specific concerns same sex couples face. An attorney with same sex divorce experience can spot problems early and avoid delays.
Document Everything
Keep records of every court action, conversation, and submission. If a judge delays or treats your case differently, that information can help in an appeal or complaint.
Same Sex Divorce and Mediation
If you want to avoid delays or court battles, consider mediation. Texas encourages divorce mediation to help couples agree on major issues before trial. That includes:
- Property division
- Child custody and visitation
- Spousal support
Mediation is often faster and less stressful. It also reduces the risk of dealing with a biased judge. You still need to file the divorce formally, but a signed agreement can speed up approval.
Same Sex Couples and Spousal Support
Texas calls alimony “spousal maintenance,” and it’s hard to qualify for. The court may grant support if:
- You were married for at least 10 years
- You can’t earn enough due to disability or because you cared for a child
- Your spouse was abusive
Same sex couples may face challenges proving long-term marriage if they lived together before legal recognition. But courts will consider the facts if you present clear evidence of financial dependency and support needs.
Key Takeaways
Texas law allows same sex couples to divorce on the same terms as anyone else. A judge cannot deny a divorce just because you’re in a same sex relationship. But certain challenges—like child custody, property division, and delays tied to old beliefs—can still happen.
The good news is that the legal tools exist to protect your rights. With the right support and preparation, you can complete your divorce and move forward.
FAQs
Can a judge in Texas legally refuse to grant a same sex divorce?
No. Texas law requires equal treatment of all married couples, including same sex couples. A judge cannot deny a divorce based on sexual orientation.
What if I married my spouse in another state before 2015?
Texas courts now recognize same sex marriages from all states. You have the right to file for divorce in Texas if you meet residency requirements.
Can non-biological parents get custody?
Yes, but it may require extra legal steps. Courts prioritize the child’s best interests, but legal parent status matters. A non-biological parent may need to prove involvement or request conservatorship rights.
Do we have to divide everything 50/50?
Texas is a community property state, but division isn’t always equal. The court will try to make a fair split based on each person’s role and contributions. Proving shared financial history before legal marriage may help your case.
Can I file for divorce without a lawyer?
Yes, but it’s risky, especially in same sex divorces with custody or property concerns. A lawyer can help avoid delays and protect your rights throughout the process.
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