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Same-Sex Marriage in Texas

This article addresses same-sex marriage in Texas. 

 

Is same-sex marriage legal in Texas?

Yes. On June 26, 2015, the United States Supreme Court issued its ruling in Obergefell v. Hodgeslegalizing same-sex marriage in every U.S. 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. People younger than 18 years old need court orders (see Texas Family Code 2.003). 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

 

 

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.

 

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

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.

 

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 Benefits and Same-Sex Couples

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. 

 

Can same-sex couples divorce?

 

Yes. 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 same-sex 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. 

If you need help finding a lawyer: For a referral to a lawyer, call the State Bar Lawyer Referral Information Service at 800-252-9690.

For information about free and low-cost legal help in your county go to the TexasLawHelp Legal Help Finder Tool. 

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.