Top 5 Questions About Same-Sex Marriage, Divorce and Child Custody in Texas – Post SCOTUS Marriage Ban Repeal

More than two years have passed since the Supreme Court of the United States (SCOTUS) overruled the state of Texas’ ban on same-sex marriage. Dallas divorce attorney Abby Gregory weighs in on how the SCOTUS ruling has – and has not – changed family law concerns for same-sex couples in Texas.

As attorneys at a Dallas-based family law firm, people often ask us how the SCOTUS ruling has affected same-sex couples in the Texas family law courts. Five of the most common questions regarding same-sex marriage, divorce and child custody follow, along with insight from the Connatser Family Law team.

No. 1: How is same-sex divorce different from a divorce between a heterosexual couple?

Most aspects of a same-sex divorce are pretty straightforward and similar to a traditional divorce. However, since gay marriage has only been legal in Texas for two years, we have had to deal with more cases where a common law marriage was involved and the couple does not have a marriage license.

In order to prove a common law marriage in Texas couples have to meet three requirements:

  • They agree to be married.
  • They live together in the state of Texas.
  • They hold themselves out to be husband and wife, husband and husband, or wife and wife. Technically, the statute only addresses “husband and wife,” so there is some loose interpretation there that will need to be addressed by the courts.

Once a common law marriage has been established, the divorce comes down to the dividing of any assets, property, financial accounts, benefits and debts – just as you would in a heterosexual divorce.

No. 2: How has the legalization of same-sex marriage had an impact on your clients?

The most obvious answer is that we are now able to facilitate same-sex divorces for our Texas clients. When gay marriage was illegal in Texas, we were unable to help same-sex couples get divorced here, because the state didn’t consider those couples to be legally married.

No. 3: What issues do you foresee arising for same-sex couples who want to divorce now that they can legally do so?

In the short term, the biggest issue for many gay divorces in Texas will likely be coming to an agreement regarding the common law marriage date. For couples with sizeable assets, determining the date of marriage is critical, because that is when division of assets pertaining to community property starts.

If the couples were legally married in another state that previously recognized same-sex marriage, that would eliminate this concern.

As the years go by this issue will lessen, because same-sex couples that marry following the SCOTUS ruling can be issued a dated Texas marriage license – whereas prior to the ruling they could not.

No. 4: Does the SCOTUS ruling change how child custody issues in Texas are handled?

Just because you’re married doesn’t mean that you are the legal parent of a child in your household. That’s why it is so important for a party who is not the biological parent to go through legal proceedings to ensure he or she has parental rights by legally adopting the child.

Without a formal adoption, the non-biological party will have no legal grounds pertaining to parental rights, should the couple decide to divorce.

If the child is the non-biological child of both parties, they will want to make sure to go through a second adoption (after one party legally adopts the child) to ensure both parents have legal rights to the child.

Prior to Obergerfell, this was the only way to guarantee that both parents in a same-sex relationship had equal parental rights to a child, as only a married couple could adopt a child together (simultaneously in the same proceeding). It will be interesting to see how adoption proceedings change, now that same-sex couples are legally recognized as married.

To learn how the Connatser Family Law team helped a wonderful mom navigate her same-sex custody dispute, read Inez’ story here.

No. 5: On June 30, 2017, the Texas Supreme Court ruled that the 2015 SCOTUS ruling doesn’t guarantee spousal benefits for gay couples. How do you see this interpretation of the ruling – and others – playing out?

Essentially, what the Texas Supreme Court said is that the reach and ramifications regarding the rights of married gay couples remain to be determined. Individual employers, the state of Texas, even different counties and cities could push back regarding rights related to marriage.

Many individual rulings that don’t extend the same rights to married gay couples as they do to married heterosexual couples will probably end up back in the hands of SCOTUS.

Abby Gregory is a compassionate Dallas divorce attorney with a substantial record in litigation, collaboration and Texas family law. A graduate of Fordham University College of Law, Abby committed herself to community service during her tenure at Fordham and received the Archibald R. Murray Public Service Award, summa cum laude, based on her extensive pro bono and community work for Lawyers for Children, the Innocence Project and others. To learn more about divorce and child custody in Dallas and Collin Counties, please call (214) 617-1583 to speak confidentially with a member of the Connatser Family Law team.