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Same-Sex Marriage & Divorce

This article tells you about same-sex marriage and divorce.

Marriage

Basics

Is same-sex marriage legal in Texas?

Yes. On June 26, 2015, the United States Supreme Court issued its ruling in Obergefell v. Hodges, legalizing same-sex marriage in every US state.

 

What is the process of getting married in Texas?

To get married in Texas, you first must apply for a license at a county clerk's office, then typically wait at least 72 hours before being married by a judge or authorized religious official. A ceremonial marriage requires a marriage license issued by the county clerk. You must complete a sworn application that establishes the facts required to show that you are legally eligible to enter into the marital relationship. Persons under 18 years of age require parental consent or a court order. You cannot be currently married. You cannot marry a person with a blood relationship of first cousin or closer. You cannot marry a current or former step-parent or step-child.

The marriage ceremony must be conducted within 31 days of the day the license is issued by the county clerk. The ceremony generally must not be conducted within 72 hours of the issuance of the license. Any Judge, Justice, Justice of the Peace, Minister, Priest, Rabbi or other authorized officer of a religious organization may perform the ceremony. It is unlawful to refuse to perform the marriage ceremony between two persons eligible to marry because of race, religion, national origin, or sexual orientation.

Texas also recognizes “common law” or informal marriage. See question 5.

 

Is there a waiting period before we can get married?

Yes, there is typically a 72 hour waiting period before being married by a judge or authorized religious official.

 

What if we were married in another state or country?

If you marry someone in another state or country, the marriage is also valid in the United States and Texas.

 

"Common law"/Informal Marriage

Can same-sex couples enter into informal or "common law" marriage?

Yes. Same-sex couples in Texas are now afforded the ability to enter into informal or “common law” marriage. Texas allows parties in an informal marriage to hold, as their legal marriage date, the earliest date at which they satisfied all the requirements of an informal marriage.

Under the Texas Family Code, an informal or “common law” marriage may be proved by evidence that (1) a declaration of marriage has been signed; or (2) by showing that the parties agreed to be married and after the agreement they cohabitated together, in Texas, as a married couple, and represented themselves to others, in Texas, to be married.

All three requirements must occur at the same time, although there is no minimal duration.

Additionally, both members of a couple must be at least 18 years of age, must not be related to each other by consanguinity (as defined in Section 6.201 of the Texas Family Code), and must be legally single. If either party is married to someone else, a new informal marriage does not start until the prior marriage is dissolved, regardless of the couple’s intent and behavior.

 

Are “common law” or informal marriages recognized in other states?

Not all states have laws like those in Texas which allow persons to marry legally without going through a licensing procedure and marriage ceremony. If you are considering moving to another state, or if you think you may have entered into a “common law” or informal marriage in another state because of your actions in that state, you should seek legal counsel from a LGBT family law attorney in the state which you are interested in.

 

I heard that if we live together for a certain amount of time, we automatically become “common law” married even if we don't tell anyone. Is that true?

No. You must satisfy the three-part test listed in question number 5 to be in a “common law” marriage, no matter how long you have been living together.

 

Are we automatically in a “common law” or informal marriage if we have children together?

No. You must satisfy the three-part test listed in question number 5 to be in a “common law” marriage, even if you have had children together

 

Does informal marriage affect my property rights the same way that a traditional marriage does?

Once the “common law” marriage is legally established and in existence, yes— it is the same as a marriage that was established through a wedding, ceremony, or license.

 

Can informal marriages be registered?

Yes. Texas law allows registration of their marriage by filing a Declaration of Informal Marriage with the county clerk in the county of their residence. The form may be filled out in advance, but both parties must sign the form at the clerk’s office under oath.

 

Can the beginning of a same-sex common law marriage pre-date the June 2015 Obergefell decision?

Yes. This is an important question that impacts determinations of separate and community property and benefits, such as pensions and Social Security. According to the Texas Department of State Health Services, “Applicants, regardless of gender, may apply for an informal marriage license using any date applicable to their relationship.”

 

What if my same-sex partner and I had a commitment ceremony, but wish to remain unmarried? Is there a way to avoid the implication that we are in an informal marriage?

In this situation, it would be a good idea to consult a LGBT family law lawyer and create written documents that clarify the situation.

 

Adoption/Children

If I or my same-sex spouse has a child, do we both need to adopt the child? What if we are unmarried?

Even though Texas now authorizes same-sex couples to marry, adoption in Texas is still important to protect the parental rights of the non-biological parent.

Previously, same-sex couples could legally adopt in Texas, but were required to adopt as two single people jointly adopting the same child, not as a couple. This process required first one parent, then the other, to individually go through the adoption process, with a minimum six-month delay between the adoptions. Under the new guidelines, all married couples will be treated the same and same-sex couples will be allowed to adopt as a couple, provided they are legally married.

Unmarried couples will still likely be required to follow the old two-step process, but – due to the Texas’ recognition of “common law” marriage, it is unclear how this change in policy will affect long-term couples who are unmarried. If you and your partner or spouse are thinking about jointly adopting a child or if you wish to adopt your partner’s biological child, consult a LGBT family law lawyer for assistance.

 

Why is a legal adoption important?

A legal adoption enables you to have the same rights and responsibilities with respect to the child as a biological parent. This protects your relationship to the child as well as the child’s relationship to you.

 

How long does the adoption process take?

The amount of time it takes depends on your circumstances, but it can take as little as a few months to complete the adoption process.

 

Do I have to do a background check for adoption?

Yes, both parents (biological and non-biological parent) must undergo an FBI background check.

 

What is a home study? Who does the home study?

Texas requires prospective parents to participate in a home screening prior to the adoption. The purpose of the screening is to gather information about the applicants in order to determine if the family is fit and ready for the adoption. The study typically evaluates the prospective parent’s family history, health, financial situation, and home environment. The home study includes a home visit. After completing the home study, the evaluator will develop a report on her findings, which includes a recommendation on whether the participant(s) should adopt.

 

Are tax credits available for adoption expenses?

Yes, it is possible to obtain an adoption credit for expenses, including court costs and attorney fees, related to the adoption.

 

Can the names of both same-sex parents be listed on the Texas birth certificate of an adopted child?

Yes. Under Texas Department of State Health Services (DSHS) guidelines, the birth certificates of adopted children may now reflect the names of both parents, regardless of the parent’s genders.

For any adoption ordered on or after June 26, 2015, supplementary birth certificates for children born in Texas will be issued/amended for the adopted child to include same-sex couples whose names are listed on the court order or formal certificate of adoption as the adoptive parents. Documentation must be provided to this effect, along with other standard documentation required for issuance/amendment of a supplementary birth certificate for an adoption. 

For adoptions ordered prior to June 26, 2015, amendments to supplementary birth certificates previously issued, will be processed and issued, as requested, to list the names of both persons of the same-sex couple if both are named as parents in the court ordered adoption. Documentation must be provided to this effect, along with other standard documentation required for issuance of an amendment to a supplementary birth certificate for an adoption.  

 

If my same-sex spouse or I give birth to a child during the marriage, can we both be listed on the birth certificate?

Yes. Under Texas Department of State Health Services (DSHS) guidelines, any child born in Texas will now be entitled to have both their parent’s names listed on their birth certificate, when one spouse is the birth-mother, provided their parents are married. Parents who were legally married anywhere in the United States at the time of their child’s birth may petition the Bureau of Vital Statistics for a revised birth certificate to reflect both parent’s names.

 

If my same-sex partner or I give birth to a child during our relationship, can we both be listed on the birth certificate even if we are not married?

The Texas Department of State Health Services (DSHS) guidelines do not address whether a child with two parents of the same sex who are not married may similarly receive a birth certificate that reflects both parents. Given the recommendation’s silence on that matter it is likely that they will not. In contrast, in Texas an unmarried woman may place the name of her child’s father on the child’s birth certificate easily, and without petitioning a court.

 

What about assisted reproduction?

Under Texas law, “each intended parent” may enter into a gestational agreement to have a child through assisted reproduction. For gestational agreements to be valid, the law requires that the intended parents are married. Since same-sex couples can now marry, they are now also allowed to enter into gestational agreements with a third party.

Birth certificates will be processed and issued/amended for any births occurring in Texas, for which persons that are a same-sex couple are legally authorized to be the intended parents of the child as authorized by Texas Family Code, ch. 160, subchapter I. Documentation must be provided to this effect, along with other standard documentation required for issuance/amendment of records for these vital events. 

 

Domestic Partnerships

Does Texas recognize domestic partnerships?

Some Texas counties accept the filing of domestic partnership agreements and maintain a registry of domestic partnerships.

A domestic partnership agreement is a document that describes the legal rights and responsibilities between two individuals of any gender in a long-term relationship. These documents are used for various purposes. Some employers use them to grant insurance and other benefits. Couples who choose not to marry do not have access to many of the property protections available to married couples. Thus, it can be useful to specify in advance the division of debts, assets, and other responsibilities in the relationship.

A domestic partnership agreement is a legal agreement, but it is not a marriage, an informal or “common-law” marriage, or a civil union.

 

Wills/Estate Planning

Now that same-sex marriage is legal, do I still need a will to direct the distribution of my assets?

Even with marriage equality, estate planning is important to protect you and your family. Estate planning is important for many reasons, such as:

  • Appointing guardians for your minor children and trustees to manage their property. In absence of such planning, a court may make such appointments;
  • While a spouse can make medical decisions on your behalf if you are incapacitated, a durable power of attorney is necessary for your spouse to manage all of your finances if you are unable to do so due to incapacity or other reason;
  • A will is necessary to control disposition of your assets. Without a will, state law decides who inherits your property;
  • For couples who choose not to marry, estate planning is important to gain some of the protections for your family otherwise available through marriage.

 

Do Texas death certificates reflect surviving same-sex spouses?

Yes. Texas death certificates will now reflect surviving same-sex spouse. A revised death certificate for a person who died before the change in policy (June 26, 2015), but whose marriage was legally recognized in another part of the United States, may be requested by their surviving spouse. Documentation of the marriage must be provided, along with other standard documentation required for issuance/amendment of a death certificate.

An informal marriage may be documented for purposes of amending a vital record by a properly filed informal marriage declaration or a court order adjudicating an informal marriage has been established.

 

Employment

Are same-sex married couples able to access the same benefits and protections under the Family and Medical Leave Act or Employee Retirement Income Security Act as opposite-sex married couples?

Yes. The Department of Labor has extended these protections to all same-sex married couples.

 

Divorce

Now that the issue of same-sex marriage recognition has been settled by the US Supreme Court, the process of divorce should be handled no differently than opposite-sex divorces. Same-sex couples can obtain a divorce in the county where at least one of them resides.

Can I represent myself in a divorce?

Yes, but it’s a good idea to get a lawyer if you can. Divorces can be complicated. This is especially true if there are custody, support or property issues. Your property, your money, and your rights as a parent may be at risk.

It is especially important to talk to a lawyer if:

  • you’re afraid for your or your children’s safety, or
  • your case is contested, or
  • your spouse has a lawyer, or
  • you or your spouse has a house, retirement, business, other valuable property or a lot of debt, or
  • you are in a same-sex marriage and you and your spouse have a child but there is no adoption or other court order stating that you are both legal parents

Even if you decide to represent yourself, you should talk to a lawyer for legal advice about your particular situation before filing anything. Be prepared if you must represent yourself. Review the information available on TexasLawHelp. Take your witnesses, papers and evidence to the hearing.

 

What if I need help finding a lawyer?

For a referral to a lawyer, call the State Bar Lawyer Referral Information Service at 1-800-252-9690.

 

What if I can’t afford a lawyer?

For information about free and low-cost legal help in your county go to www.texasbar.com/ReferralDirectory or call the Legal Aid organization serving your area:

Legal Aid of Northwest Texas 1-888-529-5277 (Dallas/Ft. Worth area & Northwest Texas)

Lone Star Legal Aid 1-800-733-8394 (Houston area & East Texas)

Texas Rio Grande Legal Aid 1-888-988-9996 (Austin/San Antonio area, El Paso & South Texas)

 

What if I just want to get some advice?

You can hire a lawyer just to give you advice, review your forms, draft a document, or help you prepare for a hearing. This is called limited scope representation. You may then be able to handle other parts of the divorce yourself.

 

How do I get a divorce?

If your divorce is uncontested, see the TexasLawHelp guide on “How to File an Uncontested Divorce.”

 

What is an uncontested divorce?

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 Official Service of Process, Publication or Posting, and does not file an Answer or Waiver of Service with the court or otherwise appear in the case.

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

 

What if there has been family violence or I feel unsafe?

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 and sexual assault. It can also include threats of violence.

You can apply for a protective order to protect you and your children. The local domestic violence shelter, county attorney office, district attorney office, and/or Legal Aid office can assist you in obtaining a protective order. The court can also issue temporary orders which restrain a spouse from coming near or contacting the other (or force a spouse to move out of the family home), establish child custody and visiting arrangements, provide for spousal support (alimony) and/or 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 1-800-799-7233. You may also call Texas Family Violence Legal Line at 1-800-374-4673 or Advocates for Victims of Crime (AVOICE) at 1-888-343-4414. For situations involving sexual assault, you can contact Legal Aid for Survivors of Sexual Assault for legal assistance at 1-844-303-7233. In an emergency situation, please call 911.

 

What does a divorce do?

A divorce:

  1. Dissolves your marriage
  2. Divides your community property (and debt)
  3. Determines child custody, visitation and child support
  4. Can change names back to someone’s maiden name
  5. 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

 

Do I need a divorce to end a “common-law” or formal marriage?

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 licensed marriage, a party to an informal marriage has only 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.

 

What is a “no-fault” divorce?

Divorce in Texas does not require “fault.” To file for divorce in Texas, only one of you has to believe that the relationship can’t be fixed. Either spouse can file for “no-fault” divorce simply because the two parties have differences that make your marriage unsupportable.

 

What are other “grounds” for divorce? 

In Texas, you can ask the court to give you a divorce because of “fault” of other spouse. The “grounds” are: adultery, cruelty, abandonment (for at least one year), 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 gives a divorce for “grounds,” the court can give more of the community property to the “innocent spouse.”

 

What if we got married in another state or country?

If you marry someone in another state or country, the marriage is also valid in the United States and Texas. 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.

 

How long do I have to live in Texas to file for divorce?

You can file for divorce in Texas if you OR your spouse has lived in Texas for six months. One of you also has to live in the county where you want to file for divorce for 90 days.

 

How long does it take to get a divorce in Texas?

You have to wait 60 days from the day you file for divorce before the divorce can be finalized by the court.

 

In a female same-sex marriage, what if either spouse is pregnant or gave birth to a child during the marriage?

It’s a good idea to talk with a LGBT 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.

 

What if my same-sex spouse or I have an adopted child, and only one of us legally adopted the child?

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 a LGBT family law lawyer about parental rights and responsibilities. Even though Texas now authorizes same-sex couples to marry, adoption in Texas is still important to protect the parental rights of the non-biological parent.

 

Is there “legal separation” in Texas?

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.

 

How will our assets and property be divided in a divorce?

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.

 

Can I get alimony?

Alimony in Texas is called “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 himself or herself. 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” usually only lasts for three years.

 

Can I get part of my spouse’s military retirement or civilian pension? 

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. It is too late after the court signs the divorce decree.