Same Sex Divorces in Texas: Essential Information

Same Sex Divorces in Texas: Essential Information

Most people in the United States know that the Supreme Court legalized same-sex marriages in 2015 by ruling that bans on such marriages were illegal and unconstitutional. However, confusion still exists regarding the impact of this decision on citizens 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, PLLC 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 in a same-sex marriage and moved to Texas before 2015, you couldn’t have obtained a divorce or married in Texas.

The Texas Family Code previously banned the recognition of same-sex marriages, logically implying that same-sex couples couldn’t divorce in Texas if they couldn’t marry there. However, the Supreme Court’s decision to legalize same-sex marriages in all fifty states changed this long-standing Texas law.

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.

Your debts, property, and other assets will split in a divorce the same way for you, regardless of whether you’re in a same-sex or a “traditional” marriage. During your marriage, any income you earn, including salary, wages, investment returns, and retirement savings, becomes part of the community estate and is subject to division in a divorce.

If you and your spouse bought a home during your marriage and it gained equity, you must divide this equity at divorce. Similarly, you must resolve and divide any debts accumulated during the marriage before a court grants the divorce.

For readers who married outside Texas: Texas now honors prenuptial agreements made in other states. When filing your Original Petition for Divorce, you should reference and attach your prenuptial agreement as an exhibit. Finally, upon concluding your divorce, attach your prenuptial agreement to your Final Decree of Divorce as an exhibit and reference it in the document.

What Does the Legalization of Same Sex Marriages Mean for Common Law Marriages in Texas?

Same Sex Divorces in Texas: Essential Information
  1. Actively agree with your common law spouse to be married.
  2. Cohabit in Texas as a couple.
  3. Present yourselves to others as a married couple.

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.

Note that if you and your common law spouse end the relationship and do not reconcile within two years, the law presumes that no common law marriage ever existed.

For those seeking a common law divorce, determining the exact start date of your marriage is crucial. This is especially challenging for same-sex couples, who have faced difficulties in establishing a specific start date due to varying laws on recognizing same-sex marriages.

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, PLLC. 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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  5. Filing for Divorce in Texas
  6. Texas Contested Divorce
  7. Alternative Dispute Resolution in Texas
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  9. Texas Out-Of-State, International Divorce & Military Divorce
  10. Why do divorces cost so much in Texas?
  11. Reduce stress and costs in a divorce by mediating your case
  12. How to budget for a cost friendly divorce in Texas

Law Office of Bryan Fagan, PLLC | Spring, Texas Divorce Lawyers

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it’s important to speak with one of our Spring, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Spring TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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At the Law Office of Bryan Fagan, PLLC, the firm wants to get to know your case before they commit to work with you. They offer all potential clients a no-obligation, free consultation where you can discuss your case under the client-attorney privilege. This means that everything you say will be kept private and the firm will respectfully advise you at no charge. You can learn more about Texas divorce law and get a good idea of how you want to proceed with your case.

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