In November, the Sixth Circuit Court of Appeals upheld same-sex marriage bans in four states (Kentucky, Michigan, Ohio and Tennessee). Prior to this decision, the Supreme Court of the United States (SCOTUS) declined to weigh in on the subject, because earlier Circuit Court of Appeals’ rulings consistently struck down state laws banning same-sex marriage. Now, with the Circuit Courts in opposing corners, it appears that SCOTUS will be forced to address the issue sooner rather than later.
Uncertainty Awaits Same-Sex Couples in Texas
As a SCOTUS ruling looms on the horizon, the future of the same-sex marriage ban in the state of Texas is making headlines. According to The Texas Observer on December 2, plaintiffs in a federal lawsuit challenging the ban asked U.S. District Judge Orlando Garcia the previous week to lift his stay of a February decision that struck down the Texas same-sex marriage ban.
“As the Observer noted, even if Judge Garcia does lift the February stay, Texas Attorney General Greg Abbott may seek a new stay from the U.S. 5th Circuit Court of Appeals, which will be listening to oral arguments from Texas and other states in January,” says Connatser Family Law Attorney Abby Gregory.
At present, same-sex couples hoping to marry in Texas will continue on a rollercoaster ride as the marriage topic is reviewed in multiple courtrooms. “The outcome of decisions at the state and Circuit Court levels will likely have a significant impact on the future of many same-sex couples in Texas. However, until SCOTUS rules, uncertainty will likely prevail, and with this uncertainty comes a host of legal considerations for the couples involved,” Abby says.
If you are in a same-sex relationship, following are the five vital facts you should know if you reside in Texas.
1. You can’t legally marry OR divorce in the state of Texas.
“Barring any break between stays by the District and Circuit Courts, the state of Texas currently only recognizes marriages that occur between a man and woman. Even if a same-sex couple legally marries in another state, that marriage is considered void in Texas. Consequently, the state will not hear cases of same-sex divorce, because in the state’s eyes, the couple is not married” Abby advises.
2. If you really want to secure a legal divorce, one of you will need to relocate.
According to Abby, “If you are a same-sex couple who legally married in another state, resides in Texas,and decides to split up, you have two options. You could simply go your separate ways or ‘break up’ (which may be problematic later on) or go through divorce proceedings in a state that recognizes same-sex marriage.
“The big challenge under the second set of circumstances is that there is no such thing as a legal, ‘quicky divorce’ for same-sex couples who reside in Texas. In order to attain a legal divorce, one of the two parties must establish residency in another state. Residency laws vary widely from state to state (from six weeks to a year), and any potential separation from work and/or family can be difficult to handle financially and emotionally,” Abby adds.
3. If same-sex marriage becomes legal in Texas, the “breaking up” scenario above could come back to haunt you.
“Currently, Texas doesn’t acknowledge the validity of same-sex marriages, but what happens if the marriage ban is lifted? Should the Courts legalize same-sex marriages in the future, there may be a swell of Texas couples who simply walked away, but who now need to take legal steps to dissolve a marriage that previously wasn’t recognized,” Abby cautions.
4. When your marriage isn’t legally recognized, you need to take steps to clarify property rights.
Without a legal agreement, such as a cohabitation agreement, same-sex couples do not have the same rights regarding property in the state of Texas as traditional married couples do. Should the two split, each party’s interests are based on how much money, assets or other property that individual invested in the household.
“Today, we see more situations of same-sex couples where both parties are not contributing equally in terms of finances. As more couples have adopted children or sought surrogacy arrangements, we more frequently find that one person stays home to take care of the children and manage the household, while the other party works. Without a legal marriage, the person who stays home wouldn’t have the same rights to property associated with the couple’s assets and liabilities as they would in a traditional marriage between a man and a woman,” notes Abby.
“Since Texas law views same-sex couples much as they do roommates – or joint tenants in common when assets are acquired – any property purchased or income earned during the marriage typically belongs to the person who earned or purchased them. So, homes, furnishings, bank accounts, retirement accounts, beloved pets and other valuables would stay with the original owner,” Abby says.
If it’s important to you that your property is split in a more equitable fashion, contact an experienced Texas family law attorney to counsel you regarding a cohabitation agreement that would be suitable for your situation.
5. Don’t delay securing a cohabitation agreement if either party owns sizeable assets or other items they value.
“A cohabitation agreement is vital for affluent, same-sex couples in Texas, because it’s the only way to protect assets and establish each party’s rights to any assets or property accumulated during the relationship. The state of Texas has made it clear that it will not enforce ‘nonmarital conjugal cohabitation agreements that are not in writing and frowns on palimony lawsuits. So, don’t assume you can fight it out in court when the relationship ends,” Abby warns.
Prepare for the Unknown
While a ruling from SCOTUS regarding same-sex marriage is likely on the horizon, no one can tell for sure how the Court will rule and when the decision will be finalized. Consequently, if you are in a same-sex relationship and reside in Texas (whether you were legally married in another state or not), and you want to clarify your options regarding marriage and divorce or how property will be divided should you split, contact a reputable family law attorney. He or she can explain your options regarding cohabitation agreements in Texas, premarital agreements in states where same-sex marriage is legal and be a resource to you as same-sex marriage legislation evolves on the state and national levels.