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Same-Sex Divorce in Texas

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This article addresses same-sex divorce in Texas. 

How do I get a divorce?

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

 

 

 

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, 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, or Legal Aid office may be able to 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;
  • 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, you can contact Legal Aid for Survivors of Sexual Assault for legal assistance at 844-303-7233. In an emergency, call 911.

 

 

What does a divorce do?

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 name.
  • 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 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 formal 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.”

See Texas Family Code chapter 6

 

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

It’s a good idea to talk with an 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 an 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 nonbiological 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.

See Texas does not have legal separation. What options are there? 

 

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 “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 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 probably too late after the court signs the divorce decree.