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Same-Sex Families in Texas

Date Published: March 15, 2019


In recent years, activists and proponents for same-sex couples have heralded landscape-changing court victories, awareness and inclusion. The national perspective continues to evolve. Most recently in 2015, the U.S. Supreme Court established same-sex marriage for all states.

The adage 'the devil is in the details' very much applies here. How will Texas courts and the legislature handle divorce, adoption, child support, and other family-related matters, for same-sex unions?

Background: Obergefell v. Hodges

In the landmark case Obergefell v. Hodges, the U.S. Supreme Court ruled that the Constitution guarantees the right to marriage for all Americans, effectively legalizing same-sex marriage nationwide. The U.S. Constitution's 14th Amendment due process and equal protection clauses require a state to:

  • license a marriage between two people of the same sex, and

  • recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state.

In theory, same-sex married partners should now have the same rights, responsibilities and benefits in marriage as a traditional male-female couple. However, this is a new area with little legal guidance.

Analogues from historical heterosexual marriages may or may not apply in this arena.

A Notable Backslide

One would intuitively think that with legalization of same-sex marriages, positive changes would come quickly. But that's not necessarily the case.

For example, in 2017 the Texas Supreme Court struck a blow (for now) against same-sex partners receiving employee benefits on the same footing as their opposite-sex counterparts. In Pidgeon v. Houston, the Texas Supreme Court noted that Obergefell requires states to license and recognize same-sex marriages just as they do opposite-sex marriages, but did not hold that “states must provide the same publicly funded benefits to all married persons.” The U.S. Supreme Court declined to hear the case, which was remanded to a lower Texas court for further proceedings.

Access to Marriage Rights and Benefits

Now that same-sex couples have full access to marriage rights and benefits, the JYR Legal team helps couples navigate issues regarding:

  • divorce

  • custody

  • adoption

  • child support

  • property division

  • spousal support (alimony or maintenance)

Complex issues arise which are unique to same-sex partners.

Common Law Marriages and Wedding Date

Texas trial courts are allowing same sex divorces (although the legislature has not yet expressly addressed this). However, one vexing issue is determining the date of a couple's marriage. Why is this often challenging? Because Texas allows marriage to occur “informally,” with what is colloquially called ‘common law marriage.’

A common law marriage occurs when couples agree to be married, hold out to others as being married, and live together. Because heterosexual couples could simply obtain a marriage license and legally wed, it's uncommon for opposite-sex couples to fall back on the common law marriage concept.

Not so with same-sex unions. Until Obergefell, same-sex marriage was illegal in Texas. Since same-sex Texas couples couldn't marry here, many essentially created common law marriages by having a wedding and then living together. Will those common law marriages be upheld when Texas, at the time, prohibited same-sex marriage?

And what if the couple had a formal, licensed marriage after Obergefell, after having a common law marriage earlier in their relationship? What is the 'correct' marriage date? Did marriage occur before Obergefell, or only after? Remember that community property begins to accumulate on the date of marriage in Texas, otherwise property is considered 'separate'. For some divorces, this could be a significant financial dispute.

Children in a Same-Sex Divorce

What happens with children in a same-sex divorce?

Beyond dividing a couple's property, usually the most emotional issue marriage partners face surrounds their children. Divorce laws are usually well-settled for heterosexual couples: who has custody, parenting time, vacation schedules, who makes college or medical decisions, who pays and the amount of child support. Judges follow guidelines. There is consistency.

Not yet for same-sex couples. Obergefell simply didn't address parenting in same-sex relationships. This is an uncharted, new frontier. For example, with opposite-sex couples, a biological child is implicitly the other spouse's child. Not so under current Texas law for female-female marriages. Does the non-biological parent have visitation rights? Custody rights? There are no solid answers yet.

How about adopting an unrelated child? Heterosexual couples can adopt a child in the same proceeding. As of now, same-sex couples cannot.

The Law Office of Jaclyn Y. Roberson, PLLC is a family law and estate planning firm based in San Antonio serving the citizens of South and Central Texas.