Unique Challenges of Same-Sex Divorce

two men in a room, tension, upset, one sitting on bed and one standing in doorway

Divorce is never easy. Parting ways with someone you loved is a challenging experience. Not only are things emotionally taxing, but also logistically difficult. You must figure out how your property is being split, your new financial reality, and your child custody and support arrangements.

For same-sex couples, these issues become even more complicated.

Legalization of Same-Sex Marriage

Texas did not recognize same-sex marriage until 2015, when the Supreme Court of the United States made same-sex marriage a constitutional right. However, long before marriage equality, many same-sex couples built lives together, lived as a married couple, and met all of the requirements to be married.

Common-Law Marriage

Based on Texas' written law, same-sex couples cannot marry in Texas. Further, the law has only recognized the right to marry for same-sex couples for six years, even for couples who had technically been together for decades and held themselves out as married or life partners.

Even though Texas law makes no mention of same-sex marriage, the Supreme Court's ruling in Obergefell v. Hodges not only recognizes the right to marry after 2015, but it recognizes marriages performed before 2015.

As a same-sex couple, determining whether or not you were married as a matter of law before 2015 can be done in several ways, including proving you were married in another state or that you entered into a "Common-Law Marriage."

Common-law marriages for same-sex couples are much more complicated to litigate, as many couples entered common-law marriages even when same-sex relations were criminally prosecuted. Because of the threat of prosecution and societal stigma, same-sex couples were forced to be more secretive and creative in forming their relationship. Further, many same-sex couples were forced to keep their relationships secret from their families and co-workers to protect their jobs and livelihoods. In proving you are married, you need a law firm familiar with these challenges and is comfortable and knowledgeable in presenting these issues to a Judge. Being able to prove your marriage and determining the duration of the marriage will often significantly affect your property rights in the State of Texas and your entitlement to things like spousal support.

Because most same-sex divorces require a case-by-case approach, it is essential to have a knowledgeable attorney by your side to navigate these legal complexities.

Community vs. Separate Property

Texas is a community property state. This means that what is purchased during the marriage belongs to both spouses, aside from a few exceptions. However, this once again is more complicated for same-same couples.

If the couple lived together long before being legally married in the State of Texas, they likely made many big purchases together. However, in the eyes of the law, all those purchases would be 'separate property.' Separate property means that, because they were purchased before their legal marriage, only one person owns and has rights to those items--this person could deny the other party the right to any proceeds from the sale of that property.

Determining when the marriage started is particularly difficult with same-sex couples for the reasons mentioned in the Common-Law Marriage" heading. Many cases concerning same-sex couples that were together before 2015 will contest when the parties were married, as this date will affect the amount each party is entitled to. The date of marriage is often very significant when one member of the couple makes significantly less than the other.

Child Custody

In most heterosexual divorces, the children and parents have biological relationships. This biological relationship grants each parent certain rights regarding their child and their right to custody. Even for those cases where the parents do not have a biological connection, Texas Law provides heterosexual couples a lot of clarity and protections for their less traditional parent-child relationships. Again, this creates problems for same-sex couples as Texas Law does not even recognize that same-sex couples can be parents. Same-sex couples must seek the advice of an attorney to protect their parental rights. Ideally, you would consult an experienced, LGBTQ-focused attorney before having children.

Not having both parents as biological parents can significantly complicate a same-sex divorce if the biological parent attempts to use a biological relationship against the other parent. These cases are emotionally complicated, and it is legally essential for the non-biological parent to have legal representation that is knowledgeable and experienced in dealing with these issues.

Bias in the Courtroom & Outside the Courtroom

Depending on where your case is being tried and in which Courtroom, you may face implicit or explicit bias as a same-sex couple. Many of the problems faced by same-sex couples, same-sex parents, or LGBTQ children are not understood by the general population. This lack of understanding, or implicit bias, becomes particularly problematic in a legal case when other parties are making observations or judgments about your relationship and parenting style. These other parties may include Judges, opposing attorneys, child custody evaluators, mediators, ad-litem attorneys, and numerous others.

An LGBTQ-focused attorney can help navigate this and ensure that parties appointed to your case (like a child-custody evaluator or ad-litem attorney) are knowledgeable and affirming of the LGBTQ community. Further, an LGBTQ-focused attorney will help tell your story and draw attention to the unique challenges you face. LGBTQ individuals live in a heteronormative world, and as litigants, we recognize and account for this throughout the legal process.

Most importantly, an attorney should understand and fiercely advocate for their client's interests and needs. At DebnamRust, you will not need to explain LGBTQ-specific problems, and you certainly will not have to convince us that the problems exist. We litigate these issues, live with these issues, and are involved with the LGBTQ community every day of our lives. We are an affirming space that celebrates and understands LGBTQ culture.

LGBTQ+ Law Firm

At DebnamRust, P.C., our attorneys are well versed in the unique circumstances that affect same-sex divorce proceedings. We can help guide you through the process and support you each step of the way. Give us a call today at (214) 758-8681 to get started on your case.