So what happens now that the Texas ban on same-sex marriage has been ruled unconstitutional? After previously leaving the matter to the lower courts, the Supreme Court of the United States (SCOTUS) ruled by a 5 to 4 vote on June 26, 2015, that the Constitution does guarantee same-sex couples the right to marry.
According to Connatser Family Law Attorney Abby Gregory, “Prior to the SCOTUS ruling, Texas did not recognize marriage between same-sex couples. That didn’t mean that same-sex couples couldn’t go to another state and get married, but the state of Texas wouldn’t recognize their marriage, grant them a divorce and they couldn’t automatically have the same property rights afforded to married heterosexual couples.
However, now that SCOTUS ruled that the Texas ban on same-sex marriage is unconstitutional, there could be several implications for same-sex couples in Texas.”
1. Same-Sex Divorce in Texas Will Be Less Complicated, and Property Rights Will Figure Prominently Post-Ban
One of the biggest benefits following the ruling is same-sex couples that legally married elsewhere can now secure a legal divorce in Texas. According to Abby, “In the past, same-sex couples married outside of Texas couldn’t divorce here. One of the two had to establish residency in a state that would grant them a divorce (which could take months and wasn’t feasible for many people).”
Now that same-sex marriage is recognized as legal nationwide, same-sex divorce will also be legal, so establishing residency in another state won’t be an issue. While this could be great news for couples who want to marry or decide to divorce after the ban is lifted, those couples could face implications regarding their property rights.
“With the ban lifted, married same-sex couples have the same marital property rights as heterosexual couples under the Texas Family Code. Texas is a community property state, so anything earned or acquired during the marriage is part of the community estate, and there would be a just and equitable division of that property upon divorce. Your separate property (any property you owned prior to the marriage, gifted to you, or that you inherit) would not be subject to division,” advises Abby.
2. Couples Who “Broke Up” Ages Ago Will Need to Reconnect, Get Divorced and Divide Property (and Debt)
What many married same-sex couples in Texas were doing prior to the ruling was break up, but those who walked away without getting a legal divorce could face costly consequences.
According to Abby, “If you ‘broke up’ with your spouse years ago, you would each have a 50 percent interest in the community estate and also be liable for 50 percent of the community debt accumulated from the date of the marriage until the date of the divorce. Assets could include income, retirement accounts, real property, investments, capital gains, etc. Basically, the presumption is that any asset or debt that was acquired during the marriage would be subject to division,” advises Abby.
3. Common Law Marriage Requirements Now Apply to Same-Sex Couples
Another implication for same-sex couples following the lift on the same-sex marriage ban pertains to common law marriage. Same-sex couples may now face possible common law marriage and community property claims.
“To establish common law marriage in Texas, you have to live in the state of Texas, you have to hold yourself out to be married, and you have to agree to be married. Essentially, the couple says, ‘we live in the state of Texas, we agreed to be married, and I call my partner my husband or my wife.’ With the ban lifted, if you can establish your union as a common law marriage in Texas, then marital property rights would apply,” Abby says.
Same-sex couples who don’t want to marry and do want to avoid future common law marriage claims can protect themselves with a cohabitation agreement. According to Abby, “Couples can establish in writing that they agree that they are not married, and establish any property rights they mutually agree upon.”
Protect Your Rights Today and Prepare for Tomorrow
If you are concerned about protecting your assets or want to avoid common law marriage and community property claims, contact a reputable, family law attorney in Texas. He or she can explain what you can expect regarding your rights and options pertaining to same-sex marriage and divorce in Texas.
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