When the Supreme Court of the United States (SCOTUS) ruled bans on same-sex marriage were unconstitutional, many same-sex couples in Texas breathed a sigh of relief. Some were excited they could legally tie the knot close to home, while others looked forward to a simplified divorce process.
As Dallas Divorce Attorney Abby Gregory explains, “Prior to the SCOTUS ruling, same-sex marriage wasn’t recognized in Texas. Consequently, same-sex divorce wasn’t recognized either. Now, regardless of where a same-sex couple married, they can get a divorce in the state of Texas.”
While the same marital laws that apply to married heterosexual couples now apply to married same-sex couples, that doesn’t mean getting a divorce in Texas is a slam-dunk. “Same-sex couples will face many of the same challenges opposite sex couples do, but we also expect how courts decide certain issues regarding same-sex divorce will evolve over time,” says Abby.
So what can same-sex couples expect during a same-sex divorce in Texas?
1. Great news! Married same-sex couples are now afforded the same property rights as married heterosexual couples.
According to Abby, “In terms of the property laws and the marital property rights of same-sex and heterosexual couples, they are now the exact same. That means all assets and debt accrued from the date of marriage until the date of divorce are subject to division.”
2. If you legally married outside of Texas, the divorce process should be relatively straightforward.
If you married in a location that recognized same-sex marriage prior to the SCOTUS ruling – say Massachusetts or Canada, for example – you will probably face fewer roadblocks to divorce. Why? “The date of marriage will be established through some sort of ceremonial marriage that occurred, and the couple should have documentation to establish when and where they married,” Abby says.
3. Your premarital agreement “there” will trump your cohabitation agreement “here.”
“Prior to the SCOTUS ruling, many same-sex couples who married outside of Texas wisely executed both a prenup (there) and a cohab (here) because of Texas law. Now that Texas recognizes same-sex marriage, the premarital agreement would stand as the ruling contract and be upheld during the divorce, as long as it was prepared properly. The cohabitation agreement will no longer be valid,” Abby says.
4. If you were legally married outside of Texas, split up and didn’t legally divorce, your community property (assets and debts) are still accruing.
Say you were ceremonially and legally married in Massachusetts, broke up three years ago but never divorced. You are still legally married to your spouse, and everything you have accrued (assets, retirement accounts, debts, etc.) is still considered part of the marital estate – and will be – until your divorce is finalized.
5. Establishing and dissolving a same-sex, common law marriage could get complicated.
As Abby explains, “The big issue with common law marriage is pinpointing the date of marriage – whether you’re in a same-sex or opposite sex relationship. I’ve seen cases with heterosexual couples who moved in together, had children, waited several years to marry and then filed for divorce. One spouse says they been common law married ever since they moved in together, while the other says they had been married since their wedding day.”
In order to establish a union as a common law marriage and for marital property rights to apply in Texas, couples must:
- Reside in the state of Texas.
- Hold themselves out to be married.
- Agree to be married.
If the date of marriage is in dispute, evidence will need to be gathered to establish when and if a common law marriage occurred, and this process takes time.
6. Common law marriage claims in Texas DO have an “expiration date.”
As Abby explains, “If you break up and haven’t been with your partner for the past two years or more, then the common law marriage claim is presumptively void. So don’t expect all sorts of people coming out of the woodwork, claiming they were common law married 10 years ago. They won’t have a case.”
7. Case law will drive various aspects of future same-sex common law marriage claims.
As a Dallas family law attorney, Abby believes same-sex common law marriage will make a lot of headlines in the coming years. “It is something I see evolving, especially in terms of how the court will set the marriage date and how far back they will go.
Are courts in Texas going to uphold common law marriages in Texas that took place prior to the Supreme Court ruling? Is Texas going to dispute couples being allowed to have same-sex marriages on the books since the 70s? There are many couples that can claim they have been married for decades.
To further complicate matters, a ceremonial marriage can sometimes negate a common law marriage claim, but not always. So if a couple held themselves out to be married back in 1975, proceeded to have a ceremonial marriage in 2015, then decides to divorce, will the court rule the marriage date is 1975 or 2015? Only time will tell.”