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Can same-sex couples who have an informal marriage get divorced?

by | Jun 5, 2020 | Informal Marriage, LGBTQ Family Law |

I recently worked on a same-sex divorce for a marriage that was actually an informal marriage. Informal marriage, of course, is the legal term in Texas used for what’s perhaps better known as a common-law marriage. For legal purposes, if it meets the standards of an informal marriage, it functions the same as any other marriage for divorce purposes.

But because of how an informal marriage comes to be, one of the biggest questions to come up in these cases is whether or not the marriage met the legal standard for a marriage. And, indeed, an informal marriage is a marriage.

Though it’s legal for same-sex couples to get married in the U.S. now thanks to the Obergefell vs. Hodges Supreme Court case in 2015, that certainly hasn’t always been the case. Some same-sex couples in Texas have been living as married couples even though they haven’t been able to legally get married, which brings in the question: Can they be considered married through Texas’s informal marriage laws.

That’s important in divorce for the obvious reason that you have to be married before you can divorced. With Texas being a community property state, that’s especially important in determining how to divide assets in a divorce decree.

Section 2.4 of the Texas Family Code deals with informal marriage, and though the code still specifies “a man and a woman,” that’s not exclusively the case thanks to the Obergefell decision.

The exact language for an informal marriage provides that “a declaration of their marriage has been signed as provided by this subchapter” (which sounds a lot like a marriage license, but isn’t necessarily), or, probably more likely, that the two spouses “agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.”

In the first case, that can be a couple that doesn’t want to have a ceremony, but is looking to show proof of being a couple for some specific purpose, like insurance coverage from an employer. In the second case, it’s a matter of agreeing to be married, living in Texas as spouses, and representing to others that they are spouses to each other.

The second and third prongs are usually the easiest ones to prove. The agreeing to be married is really within the hearts and heads of the couple, and one party could conceivably say that he or she didn’t agree to be married when asked about it in a divorce case. Yet, if there’s some document that was signed for insurance purposes, to use our earlier example, that would help to satisfy the first requirement.

In the first case above, it’s important to note that the document’s not just something created by the couple. There’s a specific Registration of Informal Marriage form provided by the Bureau of Vital Statistics, which is a state agency, filed with the County Clerk in a particular Texas county.

Now, with Obergefell coming up on its fifth anniversary next month, you’re having more and more informal marriages starting at a time in which couples could legally get married, and the representation of a same-sex couple as married is more plausible than before.

If you’re in a same-sex informal marriage, and you’re looking to get divorced, don’t fear — it can absolutely get done. Contact the Law Office of Lisa A. Vance to learn more about how to start upon settling a divorce decree for your informal marriage.