Same-Sex Divorce in Texas

If your divorce is uncontested, use the TexasLawHelp guide, I need a divorce. We do not have minor children. TexasLawHelp does not currently have forms available for same-sex divorces with children. 

Your divorce is uncontested when it is:

• Agreed – you and your spouse agree about all the issues in your case, or 
• Default – your spouse is given legal notice of your divorce by Service of Process, Publication, or Posting, and does not file an Answer or Waiver of Service with the court or otherwise appears in the case.

If your divorce is contested, talk to a lawyer before filing any forms with the court.

If you want to know more, read Uncontested and Contested Cases: The Difference.

It is not a good idea to do your own divorce without a lawyer when there has been family violence. Family violence includes physical violence, sexual assault, and threats of violence.

You can apply for a protective order to protect yourself and your children. Your local domestic violence shelter, county attorney office, district attorney office, or Legal Aid office may be able to assist you in obtaining a protective order. The court can also issue temporary orders that:

• restrain a spouse from coming near or contacting the other;
• require a spouse to move out of the family home;
• establish child custody and visiting arrangements;
• provide for spousal support (alimony) and child support payments; 
• order either spouse not to sell valuable assets; and
• give possession of the family home or car to one of the spouses. 

Texas has laws that protect victims of family violence whether they are getting a divorce from their abusive partner or not. If you are being abused, please reach out. To locate the shelter and services nearest you, you may call the National Domestic Violence Hotline at 800-799-7233.

You may also call the Family Violence Legal Line at 800-374-4673 or Crime Victims at 888-343-4414. For situations involving sexual assault, contact Legal Aid for Survivors of Sexual Assault for legal assistance at 844-303-7233.

For more information and a list of LGBTQ+-friendly resources, read LGBTQ+ Relationships and Domestic Violence.

In an emergency, call 911.

A divorce:

• Dissolves your marriage;
• Divides your community property (and debt);
• Determines child custody, visitation, and child support;
• Can change names back to someone’s maiden or another former legal name; and
• Can sometimes order spousal support or temporary orders that, can, for example, restrain a spouse from coming near or contacting the other, force a spouse to move out of the family home, or give possession of a vehicle to one spouse.

Once a marriage exists, whether it is a formal or informal marriage, it can only be dissolved by divorce through the courts, or death of one of the spouses.

Unlike a formal marriage, a party to an informal marriage only has two years from the end of the relationship (by death or non-cohabitation) to assert a right based on the marriage. After two years, the law presumes that no marriage existed. 

Texas law does not require fault for the divorce. To file for divorce, only one of you has to believe that the marriage cannot be fixed and there is no chance of reconciliation. Either spouse can file for “no-fault” divorce simply because the two parties have differences that make your marriage unsupportable.

However, you can also file for divorce because the other spouse is at "fault." The grounds are: adultery, cruelty, abandonment (for at least one year), a conviction for a felony (and at least one year served), living apart (for three years), or commitment to a mental institution (for three years with little or no hope of recovery). When a court grants a divorce for grounds, the court can give more of the community property to the “innocent spouse.”

See Texas Family Code chapter 6. 

If you marry someone in another state or country, the marriage is also valid and recognized in the United States and Texas. The federal Respect for Marriage Act passed in December 2022 requires all states to recognize same-sex marriages from other states.

Because the marriage is recognized here, you will need a divorce to dissolve the marriage. Regardless of where you were married, you can get a divorce in Texas if you or your spouse meets the Texas six-month residency requirement.

You can file for divorce in Texas if you or your spouse has lived:

• in Texas for at least the last 6 months, and
• in the county where you file for divorce for at least the last 90 days.

Texas Family Code Section 6.301.

Note for military families: If you are serving in the military or other government service outside of Texas you may still file for divorce in Texas if:

• Texas has been the home state of either you or your spouse for at least six months and
• the county where you plan to file the divorce has been the home county of either spouse for at least 90 days. 

The same rule applies if you are accompanying the serving spouse in the military or other government service outside of Texas. If Texas is your home state, time spent outside of Texas with your military spouse counts as time spent in Texas.

Texas Family Code Section 6.303.

Note for military families with children: Talk to a lawyer if you and your spouse have children together and your children have lived in another state or country for the last six months. A Texas court may not have jurisdiction to make orders about your children.

Except in cases involving domestic violence, you must wait a minimum of 60 days from the date the divorce is filed before the divorce can be granted. Most divorces take much longer than 60 days.

While the divorce is pending, the court can enter Temporary Orders for child support, custody, use of property, payment of attorney’s fees, and other issues. Temporary orders end if the case is dismissed or the court enters a final decree of divorce.

It’s a good idea to talk with an LGBTQ+ family law lawyer if either spouse in a female same-sex marriage is pregnant or gave birth to a child during the marriage. Parentage of the child may need to be established by court order before you can finish the divorce. You can read Divorce When a Spouse is Pregnant, LGBTQ+ Parental Rights, and Same-Sex Parentage for more information and legal resources.

If you or your same-sex spouse has an adopted child, and only one of you formally adopted the child, it’s a good idea to talk with an LGBTQ+ family law lawyer about parental rights and responsibilities. Even though Texas authorizes same-sex couples to marry, adoption in Texas is still important to protect the parental rights of the nonbiological parent. Read LGBTQ+ Parental Rights and Same-Sex Parentage for more information.

No. There is no legal separation in Texas. Instead, when you file for divorce, the court can give you some temporary orders to keep things stable while the divorce is pending. The temporary orders can cover child support, visitation, custody, who lives where, who drives what car, and other issues of this nature.

Read Texas does not have legal separation. What options are there? for more information.

In a divorce case, the court divides the property that you acquired during the marriage unless it is the separate property of one spouse. Separate property is anything you owned before the marriage and property you got during the marriage by gift to you alone or by inheritance. Property that the court can divide in the divorce includes land, buildings, vehicles, bank accounts, pension accounts, furniture, personal belongings, and debts (like credit card debts).

The judge (or jury) decides how to divide the property fairly. The court looks at what each person gave to the marriage, and if anyone is at “fault” in the breakup of the marriage. The court looks at the needs of each person.

For more information about dividing property in a divorce, read Community Property and Dividing Your Property and Debt in a Divorce.

Alimony in Texas is called spousal maintenance, and it is difficult to get. There are two ways to get maintenance in Texas.

The first way is that you have been married for at least ten years, and the spouse asking for maintenance is not able to support themselves.

The second way is that one of the spouses was convicted of domestic violence within two years of when the divorce was filed.

Either way, maintenance is not usually ordered for more than 10 years and is more likely for five or fewer. Read Spousal Maintenance (Alimony) for more details.

Sometimes. Tell your lawyer about any military or civilian pension and any other benefits your spouse may be entitled to. Do this before the divorce is finalized. It is probably too late after the court signs the divorce decree.

For more information on dividing pension and retirement benefits, read Dividing Retirement Benefits Upon Divorce.