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Same-Sex Divorce: Working It Out While the Courts Work It Out

On Behalf of | Sep 23, 2016 | LGBTQ Family Law |

Thanks to the June 2015 Supreme Court ruling in Obergefell v. Hodges,  it’s now legal to be married throughout the United States to whomever you love, including our great state of Texas! If a same-sex couple marries in Texas today, and then decides to get divorced at some point in the future, the laws that oversees divorce in Texas will apply as it has for heterosexual couples in the past (starting with the petition process, standing orders, and couples being able to choose alternatives to a litigated divorce).

But, what about those marriages that occurred prior to June 2015?  Because gay marriage hasn’t always been legal in all states, and only became legal in Texas last year with the Supreme Court’s decision, it will take time to sort out potential issues regarding when a marriage occurred between two parties, especially for purposes of divorce. and future individual cases will have bearing on how same-sex divorce works in Texas within the parameters of the new and old laws.

For example, what happens with couples who got married in a state where it was legal before the Supreme Court ruling, who have lived in Texas for the entirety of the marriage? Legally, the marriage would only be recognized in Texas when the Supreme Court ruling went into effect, or June 2015. For those couples married prior to that date in another state where their marriage was recognized, at issue is defining community property (property through individual jobs as well as through any joint investments or endeavors during the course of the marriage.

One side could potentially argue that their property accumulated after their marriage, which occurred in a state recognizing same-sex marriage, should be considered separate property instead of community property because at the time Texas didn’t recognize their marriage until June 2015. This area of law is still developing and it will be interesting to see how cases are viewed in the future.

Another issue judges will have to wrangle in the future includes how to classify couples who merely lived together in Texas before the ruling who then sought out marriage when they could legally do so in Texas? Of course a same-sex couple can now hold out and file their marriage since June 2015 under the common law marriage guidelines, but what about those who can articulate they were holding out as a married prior to June 2015? When is there marriage recognized for purposes of partitioning property and assets?

Those issues will take a while to sort out – especially in a place like Texas, where judges aren’t eager to address those issues and look to legislators to create laws that stipulate how decisions are made. Because of that, my advice to same-sex couples looking to divorce right now is to work together to create a settlement that works for both parties.

Mediation and collaborative divorce give you the chance to determine what’s important and what’s not, to work out a settlement based on that and have more of a voice and control in the process, without having to wait for a judge to weigh in.

Often, when a divorce goes to court, the judge relies on a parenting schedule and a child support payment structure that is well-established, familiar, and what many consider to be “cookie-cutter.” It makes certain assumptions about the role of a father and a mother, and operates based on those assumptions.

For a same-sex couple, those roles and assumptions simply don’t apply. And while it’s possible that the acknowledgment of same-sex couples in Texas will give us some important differences in standard divorce settlements down the road, I believe that the best route right now is to negotiate a settlement with a mediator or collaborative lawyers who understand same-sex divorce issues. Mediation and collaborative divorce allows you to have a conversation about your situation, whereas a courtroom divorce ultimately results in a judge telling you what you’re going to do going forward.

You may be mad at the person you’re divorcing, you may see nothing but red when you look at that person, but it’s in your best interest to work it out while the courts work it out. Otherwise, you could be looking at a settlement that doesn’t fit your needs, your situation, or your history.