Same-Sex Divorce

Texas Couples who live together for a significant amount of time often share a relationship that functions and appears like an official marriage. This is especially true when the couple has been raising children together. Texas law, like many U.S. jurisdictions, allows for an informal marriage (colloquially known as a “common-law” marriage) to be entered into for a couple to enjoy the privileges, obligations, and protections of marriage. The application of Texas’s informal marriage statute is not completely clear with regard to same-sex couples seeking spousal benefits, divorce, or custody determination by a state court. One member of a same-sex couple was recently denied an appeal for her divorce petition against her former partner, as the Texas court ruled that the requirements for an informal marriage were not met in this case.

The plaintiff in the recently decided case is a woman who was in a relationship with the defendant for approximately 8 years. According to the facts discussed in the appellate opinion, the defendant gave birth to two children throughout the parties’ relationship, and the couple raised the children together as a family unit. After the couple broke up, the plaintiff sued the defendant for divorce, alleging the parties had a valid informal marriage and seeking a division of property, as well as shared custody of the children. The district judge dismissed the plaintiff’s petition, finding that the parties were not married and she had no standing to sue the defendant.

Texas law allows for a valid informal marriage under two sets of circumstances. First, a couple can file a declaration with the county clerk of the county of their residence, stating that they intend to enter into an informal marriage. Second, an informal marriage can be established if (1) the couple agreed to be married; (2) after the agreement, they lived together in Texas as husband and wife; and (3) in Texas, they represented to others that they were married. On appeal, the plaintiff argued that there was evidence to support all three of the second set of factors for establishing an informal marriage.

A federal judge in San Antonio struck down the ban on same-sex marriage earlier this year citing that the ban has “no legitimate governmental purpose.” In fact, the judge said that the ban is unconstitutional because it prevents equal rights across the board for marriage. Even though this seemed to be a large step for the LGBT community, the law prohibiting same-sex marriage is still in effect until the decision can complete the appeal process. Attorney General Greg Abbott plans to fight for Texas’ right to regulate the marriage institution.

Thus, the Texas ban continues on same-sex marriage but the question of same-sex divorce is becoming an ever increasing issue in the family law world. Reason being, because Texas does not recognize same-sex marriage it also in turn does not currently recognize same-sex divorce. That is, if you and your partner get married out of state and move back to Texas you only have two choices right now—either just separate indefinitely or declare the marriage void.

Texas Family Code Section 6.204(b) states that “a marriage between persons of the same sex for a civil union is contrary to the public policy of this state and is void in this state.” Further, subsection (c) states “The state or an agency or political subdivision of the state may not give effect to a (1) public act, record, or judicial proceeding that creates, recognizes, or validates a marriage between persons of the same sex or a civil union in this state or any other jurisdiction; or (2) right or claim to any legal protection, benefit, or responsibility asserted as a result of a marriage between persons of the same sex or civil union in this state or any other jurisdiction.” Therefore, even if you are legally married in another state you are not considered married in Texas and therefore do not have the rights a married couple would have including the right to divorce. Many people do not see divorce as a right until it is considered in the context of what you gain during a divorce. A divorcing couple has rights in that their property is considered community and there are claims to exclusive use of property, spousal support, child support, and even custody. On the contrary, if your marriage is declared void then it is as if the marriage never existed. Therefore, you would not have any rights to anything that was accumulated during the marriage such as children or property.

Articles Posted in Same-Sex Divorce

Establishing an Informal “Common-Law” Same-Sex Marriage in Texas

What is the Status of Same-Sex Divorce in Texas?