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Family Law for Same-Sex Couples in Texas

In June 2015, a United States Supreme Court ruling declared state-level bans on same-marriage to be unconstitutional, compelling Texas and other states to permit same-sex marriages for the first time.

By mid-September, the state had issued about 2,500 same-sex marriage licenses, even though the Texas Legislature was in recess and would be unable to rewrite Texas civil code to conform with the federal ruling until at least its next session, in 2017.

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No question exists now about the legality of same-sex marriage in Texas. But the process of same-sex divorce does raise some legal questions that may be difficult to resolve, at least until Texas civil code is rewritten. Same-sex couples going through divorce may end up in courtrooms, debating property division, child custody and support, spousal maintenance, entitlement to retirement accounts, and more.

If you need help with your same-sex marriage or dissolution of your domestic partnership, call the Evans & Herlihy Law Firm. We have helped many couples resolve family law cases, with a focus on avoiding or minimizing courtroom time for our clients and achieving the best possible outcome for children. Ask for your consultation today: 1-855-414-1012.

Determining Which Laws Apply to Same Sex Marriage

In Texas, a common law marriage exists when two partners agree to live together for an indeterminate time as if they are married and present their relationship to others as a marriage. In theory, with the legalization of same-sex marriage, same-sex common law marriage should be legal, too, but that concept was tested in a Texas court last year.

In the 2015 ruling that drew national attention, a Travis County judge recognized a common law marriage between two women, even though one spouse had died in 2014, before same-sex marriage was legal in Texas. The ruling ended a long legal battle between the surviving spouse and the deceased spouse’s family and gave the surviving spouse the right to inherit benefits from the deceased’s estate.

Texas courts have heard other cases involving same-sex divorce and the rights of same-sex partners who were living as a married couple before the 2015 Supreme Court ruling. What sometimes complicates these cases is that many Texans in same-sex marriages that predate July 2015 were married in other states, where same-sex marriage was legal. To file for divorce in Texas, the petitioner must have resided in Texas for the previous 12 consecutive months, and the soonest a divorce can be granted is 61 days after the petition is filed. If a spouse returns to the state where the marriage occurred, establishes residency, and is the first to file for divorce, then that state, not Texas, would hold jurisdiction over the divorce.

Understanding Same Sex Parental Rights

Same-sex couples may have a variety of legal concerns relating to their roles as parents. If they adopted a child before Texas recognized same-sex marriage, only one parent’s name appears on the birth certificate, which means that in a divorce, the parent not listed on the birth certificate may have difficulty making a case for his or her right to visitation or conservatorship. But the Texas Dept. of Health Vital Statistics division now allows same-sex adoptive parents to request a revised birth certificate listing both parents.

Same-sex female couples, in which one is the child’s birth mother, may also ask for the other parent’s name to be added to the birth certificate.

Even after a partner has his or her name added to the birth certificate for an adopted child, that doesn’t mean that a formal adoption relationship exists. To protect one’s parental rights, and to ensure children receive any benefits that may be available to them, a parent who was not part of the initial adoption process may wish to legally adopt the child.

Without a legally recognized adoption, if one partner should die, that partner’s family could challenge the surviving partner’s parental rights. A formal adoption relationship can help prevent long legal disputes in the case of divorce or death and ensure that any custody and visitation agreements will be in the best interest of the child.

Getting Help with your Same Sex Divorce

Divorce proceedings for same-sex couples should be no different than they are for opposite-sex couples, but until state law is clarified, it’s likely that same-sex divorces may raise new and untested legal questions.

The Evans & Herlihy Law Firm understands that the emotional toll of divorce can be further complicated by uncertainty about what laws will apply in a particular situation. Our family law experience enables us to provide the best advice for same-sex couples getting divorced, and we work hard to make sure our clients feel that the final divorce decree is just and fair. Contact us today via our online form, or call us at 1-855-414-1012 to request your no-obligation consultation.

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”When it comes to finding legal representation, you want the best! Someone who is going to represent you in the best way possible, who you can trust throughout the whole process. Add to that, someone who is honest, reliable, and quick to respond with all communications. I can easily say this describes Scott Herlihy! I was so impressed with him personally and professionally. I would hire him again without hesitation!” – Janie Hayes (Google Review)

Attorney Scott Herlihy

Attorney Scott HerlihyScott handles a wide range of family law matters, both contested and uncontested, including divorces involving both large and complex estates as well as more modest asset and property divisions, modifications of Texas and out-of-state orders, custody disputes, establishment and enforcement of child support, prenuptial and postnuptial agreements, paternity cases, and grandparents’ rights matters. [ Attorney Bio ]