Divorce is never easy, and for LGBTQ+ couples in Texas, there are additional considerations that can make the process more complex. While the Supreme Court’s Obergefell v. Hodges decision in 2015 legalized same-sex marriage nationwide, the legal history of your relationship can still play a role in property division, custody arrangements, and other aspects of divorce.
If you’re navigating a same-sex divorce in Texas, understanding your rights, and having an experienced attorney by your side, can make all the difference. Here’s what you need to know about LGBTIQ+ divorce in Texas.
Property Division in LGBTQ+ Divorces in Texas
Texas is a community property state, meaning assets and debts acquired during a marriage are typically split equally between spouses. For LGBTQ+ couples, property division can be more complicated, especially if your committed relationship began long before you were legally married.
Key considerations include:
- Dating the start of the community estate: For couples married after 2015, community property legally begins on your wedding date. Assets accumulated before marriage are generally considered separate property, even if both partners contributed to them.
- Pre-marital contributions: If you or your spouse contributed to assets prior to marriage, an experienced attorney can help argue for a fair division that accounts for these contributions.
- Common-law marriage: If you were in a committed relationship before Obergefell, Texas may recognize a same-sex common-law marriage. To prove this, you must show that you agreed to be married, lived together as a married couple, and represented yourselves as married to others. Establishing a common-law marriage can backdate the start of your community property, which can be crucial in property division.
Texas Child Custody and Parental Rights
One of the most challenging aspects of LGBTQ+ divorce in Texas can be child custody, particularly for non-biological or non-legal parents. Texas courts make custody decisions based on the “best interests of the child,” but unique challenges may arise if both spouses are not legal parents.
Legal parents: If both partners are recognized as legal parents, biologically or through second-parent adoption, they have equal rights to custody and visitation.
Non-legal parents: If one partner is not legally recognized, they may face obstacles in securing custody. Options include:
- Second-parent adoption: Establishes parental rights for the non-biological parent without affecting the biological parent.
- De facto parent standing: In some cases, a non-biological parent may gain custody rights by showing they have provided “actual care, control, and possession” of the child for at least six months.
Out-of-state marriages or parenting agreements, like gestational contracts, may add another layer of complexity. An attorney familiar with LGBTQ+ issues in Texas can help you navigate these situations.
Navigating Prior Relationships, Civil Unions, and Domestic Partnerships in Texas
Many LGBTQ+ couples’ relationships predate marriage equality. Prior domestic partnerships, civil unions, or other agreements, especially from out-of-state, can affect divorce proceedings. Texas does not recognize domestic partnerships or civil unions at the state level, so ensuring these agreements are properly addressed during divorce is critical.
Additionally, recent national legal developments, such as the Respect for Marriage Act (2022), safeguard same-sex marriages performed elsewhere, but ongoing legal challenges can create uncertainty. Having legal guidance ensures your rights are fully protected.
Why You Need an Experienced San Antonio LGBTQ+ Divorce Attorney
If you’re considering divorce as an LGBTQ+ individual in Texas, working with a family law attorney experienced in LGBTQ+ issues is essential. An attorney can help you:
- Determine the correct start date of your community estate.
- Resolve property disputes involving pre-marital assets.
- Protect parental rights for non-biological or non-legal parents.
- Address issues stemming from previous domestic partnerships or civil unions.
Navigating these complexities without guidance can put your rights, and your family’s future, at risk.
Final Thoughts
Divorce can be emotionally and legally challenging for anyone. For LGBTQ+ couples in Texas, unique considerations around property, custody, and prior legal relationships make it even more important to have knowledgeable representation. If you’re facing an LGBTQ divorce in Texas, don’t wait to get the guidance you need. A skilled attorney can help protect your rights, simplify complex legal issues, and advocate for the best outcome for you and your family. Contact The Whitley Law Firm for guidance today.
