On June 26, 2015, the Supreme Court ruled that same-sex marriage was legal throughout the country. Since that time, Texas has recognized all legally binding marriages, making the requirements for getting hitched and divorced identical for couples across the board—regardless of gender. However, being denied the right to marry for so long meant that many same-sex couples were forced to get married in other states, or attempt to form a kind of common-law marriage. And it is these issues that can sometimes complicate the divorce process for same-sex couples.
Because of these unique obstacles, we know how important it is that you have the right attorney representing your divorce. You need a team that is adequately skilled to handle the specific nuances of an LGBTQ case, and individuals who are prepared to fight for your rights without prejudice. Having dealt extensively in these matters, the attorneys at Neal Ashmore are uniquely suited to do just that. When getting a same-sex divorce in Texas, here are some of the challenges you might face, and how your Neal Ashmore attorney can help you overcome them.
Same-Sex Divorce and Community Property
Texas is a community property state, which means that all assets acquired during the marriage by either spouse belong to the couple equally. Upon divorce, these assets are then divided between the partners, and anything they brought into the marriage will leave with the respective individuals as separate property.
The process of property classification can be a headache under even the best of circumstances, but what happens when you don’t have an official marriage date? Or if you were forced to marry in another jurisdiction, as many same-sex couples were?
Undoubtedly, couples who married in states that recognized same-sex marriage, will face fewer obstacles when it comes to property division. This is because they likely already have a license, marriage date, and other official paperwork on file. These documents show that a marriage occurred, and when, making it a simple matter to calculate when property began to count toward the marital pot.
In contrast, if you married in a jurisdiction that didn’t recognize your marriage (say, Texas, for example), proving that nuptials actually occurred gets a little harder.
Before the Supreme Court’s ruling, many same-sex couples got married unofficially, triggering what would basically be considered a common law (or “informal) marriage. While this type of union would not have been recognized prior to the Supreme Court’s ruling in 2015, it’s important to note that your same-sex, common law marriage can, in fact, predate this decision.
However, since common-law marriages do not require a formalized process—including paperwork—you will need to provide proof that the requirements for a common-law marriage were met. This might include tax forms, photographs, the act of taking each other’s name, or even emails and letters. Basically, anything with a date that refers to you both as a married couple.
Divorce for Common-Law Marriage
To claim marital property, common-law couples must go through the same, formalized divorce process as traditionally married couples. If a common-law union dissolves, one of the parties must file for divorce within two years, or else the state will assume that a marriage never actually took place.
Same-sex partners are held to this same deadline. Thus, you will not be able to apply for divorce retroactively, if you’ve been living apart from your spouse for more than two years.
The Divorce Needs to be Official
Whether same-sex or hetero, in terms of property division, making your breakup official matters. Texas does not recognize legal separation, so if you were married outside of Texas, split up, but never divorced, your assets (and debts) are still counting towards marital property.
Same-Sex Divorce and Children
It’s no secret that courts heavily favor the direct, parent/child bond—whether biological or adopted. However, in families where parents are the same gender, it’s common for only one of the partners to be biologically related to the child. And while your child might not recognize a difference between you and your spouse, the court isn’t nearly as generous.
Thus, by far the surest way for same-sex couples to solidify their parental rights is to make the relationship legal right from the start. Formally adopting your child will make your parental claims unquestionable, if you and your spouse ever divorce.
Couples who forego this measure may have a difficult time convincing a judge to grant visitation or custody to the non-parent spouse. If this is something you’re worried about, a Neal Ashmore attorney can discuss what options might available to protect your parental rights.
Same-Sex Divorce and Alimony
While the Supreme Court may have clarified a same-sex couple’s right to marry, it fell short of clarifying many nuances that often arise in divorce. One of these, is with alimony.
Alimony, or “spousal support,” is a need-based support meant to help a homemaker spouse get back on their feet after making career sacrifices for the family’s success. If the 2015 Supreme Court verdict is to be taken literally, then the homemaker in a same-sex partnership would, presumably, be entitled to the same alimony assessment as a homemaker in a traditional marriage. However, lacking sufficient case law, it’s difficult to know how, exactly, a judge might rule on this item.
In other states, courts will sometimes award “palimony,” which is a need-based compensation similar to alimony, but applies to partnerships that were never formalized through marriage. However, since Texas recognizes common law marriage (where many jurisdictions to not), there are only very limited circumstances where a Texas court might grant palimony.
In general, alimony is neither guaranteed, or indefinite, even in heterosexual marriages. However, if spousal support is something you’re entitled to, your Neal Ashmore attorney will do everything possible to ensure you are fairly compensated for the career sacrifices you made in support of your family.
Same-Sex Divorce Attorneys
At Neal Ashmore, we take pride in offering our clients a standard of care that is a step above the rest. As strong advocates of LGBTQ rights, we have the knowledge, skillset, and passion necessary to protect your interests in a same-sex divorce.
If you or a loved one have further questions about same-sex divorce in Texas, call us today at (972) 436-8000, or schedule a consultation online to discuss your specific situation. Divorce is never easy, but together, we can make the transition into your new normal unfold as smoothly as possible.