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  • Writer's pictureAngela Faye Brown


Updated: Apr 3, 2019

On June 26, 2015, the Supreme Court of the United States (SCOTUS) ruled that bans on same-sex marriage were unconstitutional. This news caused many same-sex couples to jump for joy, but for same-sex couples seeking a divorce, the news was bittersweet.

History of Same-Sex Marriage in Texas

Prior to SCOTUS' landmark decision declaring same-sex marriage legal nationwide, same-sex couples not only were forbidden from legally getting married, but couples married in states that already allowed same-sex marriage were unable to get a divorce if they lived in a state that did not recognize their marriage, such as Texas. According to the Texas Constitution, Article I, Section 21 and the Texas Family Code §6.204 recognition of any same-sex marriage by the State of Texas was prohibited. This also meant no divorce according to the Attorney General who stated, "divorce is a benefit of marriage." So, even though same-sex couples could file suits affecting the parent-child relationship (SAPCR) to handle issues regarding children, and could file suits under the property code regarding real estate, they could not end their marriage. In other words, same-sex couples were forced to remain in an unhappy marriage, and essentially could not remarry. But this all changed when SCOTUS held:

"No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right." Obergefell v. Hodges, 576 U.S. ___ (2015) at *28.

How Does a Same-Sex Divorce Differ from a Traditional Divorce?

Essentially, it doesn't! The same marital laws that apply to heterosexual couples now apply to same-sex couples. Same-sex couples who want to end their marriage can file for divorce at any county clerk's office, regardless of where they live. They are afforded the same marital property rights as heterosexual couples, meaning all assets and debt accrued from the date of marriage until the date of divorce are subject to division. Even prenuptial agreements executed by same-sex couples who married outside of Texas would be upheld during the divorce, as long as it was properly prepared. However, just because same-sex couples are afforded the same martial rights as heterosexual couples does not mean a divorce will be simple and straightforward. All divorces carry a level of complexity and intricacies, including same-sex divorces, but with the enactment of a new law, Texas lawmakers are still trying to figure out how the Texas Family Code will be affected with respect to other aspects of marriage, such as the establishment of common law marriage for the same-sex couples.

So, Does Common Law Marriage Apply to Same-Sex Couples?

Yes! Texas is a state with common law marriage, so since same-sex couples are afforded the same marital rights as heterosexual couples, they too could be common law married if they meet the following requirements set out in Section 2.401(a)(2) of the Texas Family Code:

  1. The couple agreed to be married;

  2. lived together in Texas; and

  3. represented to others that they were married.

Because Obergefell applies retroactively, same-sex couples who meet these requirements could argue that their marriage existed in Texas long before June 26, 2015. The question is how far back will the courts go when deciding the date of marriage? Will same-sex couples who have been in a committed relationship since the 60s or 80s be able to claim they have been married for decades? At this point, the answer is unclear. However, on September 17, 2015, a Travis County probate judge held that a common law marriage existed between two women long before SOCTUS' historical decision. The couple met in 2004 and had a marriage ceremony performed in Texas in 2008. The judge found that since the women had a marriage ceremony in Texas, lived together in Texas, and represented to others that they were married in Texas, then a common law marriage existed. (For more information about this case, please see In re Estate of Powell, No. C-1-PB-14-001695 (Probate Court 1, Travis County, Tex. Feb. 17, 2015)).

Another same-sex couple in Tarrant County who began living together as a married couple in 1992, successfully sought formal declaration of their marriage in September of 2015, but it was not easy. When the couple first went to declare their marriage, they were told by the Tarrant County Clerk that they could get the declaration of marriage, but could not put the date of their union prior to June 26, 2015. The two men contacted their attorney who was going to initiate a lawsuit to ensure the couple could receive an accurate declaration of common law marriage, but the lawsuit was not needed. The Texas Department of State Health Services issued a statement stating there was a miscommunication regarding the issue, and that all applicants, regardless of their gender, could apply for a common law marriage license using any date relevant to their relationship.

While these two cases present examples of Obergefell's retroactive application, same-sex couples should be aware of the fact that common law marriage has its limits. According to Section 2.401(b) of the Texas Family Code, the statute of limitations (a law that restricts the amount of time parties have to start legal proceedings) to declare a common law marriage is two (2) years. What exactly does that mean? It means, if a same-sex couple (or a heterosexual couple) breaks up and do not reconcile their relationship within two years, there is a rebuttable presumption that the common law marriage never existed. In addition, Section 2.401(c) states that a person under the age of 18 years cannot be a party to a common law marriage, nor can that person execute a declaration of common law marriage.

Although the elements of establishing a common law marriage and the limits of common law marriage seem straightforward, common law divorces could get complicated. The biggest issue is determining when the marriage began. If a same-sex couple married in a state that already recognized same-sex marriages, the date of marriage can likely be found on the marriage certificate issued in that state. However, for those same-sex couples who were unable to legally get married, evidence may be needed to establish when the common law marriage began. Keep in mind that the length of the marriage may also affect other aspects of divorce, such as spousal maintenance and the accrual of community property.

Texas is a Community Property State, What Does That Mean for Same-Sex Couples?

Texas is a community property state, meaning all property acquired during marriage belongs to both spouses. Therefore, the most important question when determining community property is-When did the couple marry? Again, for same-sex couples who got married in a state that already recognized same-sex marriage, the answer to that question can likely be found on the marriage certificate issued in that state. But for those same-sex couples who did not take that route, the date of marriage may be more difficult to determine, especially if both spouses disagree on that date. However, once a date of marriage is determined, the process of determining which property is considered community property and which property is considered separate property is the same as that used for heterosexual couples.

According to Section 3.001 of the Texas Family Code, separate property consists of: "(1) the property owned or claimed by the spouse before marriage; (2) the property acquired by the spouse during marriage by gift, devise, or descent; and (3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage." According to Section 3.002 of the Texas Family Code, "[c]ommunity property consists of the property, other than separate property, acquired by either spouse during marriage."

WARNING: If you were legally married in a state that already recognized same-sex marriages and split up without obtaining a divorce, your community property is still accruing. Therefore, even property obtained after the break-up may still be considered community property.

What Does Divorce Mean for Our Children?

Although Obergefell legalized same-sex marriages in all 50 states, it failed to address issues regarding children of same-sex marriages. Thus, there are still many questions regarding those issues, such as parentage. Texas has the Uniform Parentage Act, which sets out who is a presumed parent, alleged parent, and how to adjudicate parentage, but how helpful is that when it comes to same-sex couples. In a relationship where two women are acting as parents of a child, how is parentage to be adjudicated? What about two men acting as parents of a child? These are questions that must be answered by our state legislature. However, assuming the legislature reconciles the details concerning parentage, which we are optimistic will occur, conservatorship should be decided in the same fashion as traditional SAPCR cases.

The Texas Family Code requires courts to act in the best interest of the children when determining conservatorship. Thus, conservatorship decisions rest on the fitness of the proposed conservators and other factors set forth in Holly v. Adams, including, but not limited to, the desires of the child, the emotional and physical needs of the child, and the emotional and physical danger to the child now and in the future. 544 S.W.2d 367, 371-72 (Tex. 1976).

So, How Exactly Do I Get a Divorce?

A divorce can only be obtained by a court order or by the death of a spouse. The first step in obtaining a divorce is filing suit in the proper court. This means the court must have proper venue, subject-matter jurisdiction, and personal jurisdiction. The most important of these three, and the only one addressed in this article, is venue, where the suit may be brought.

In cases not involving children, venue is proper in (1) the county where either you or your spouse has resided for the past 90 days if both of you have lived in Texas for the past 6 months; (2) the county where you have resided for the past 90 days if you are the only party who has lived in Texas for the past 6 months; or (3) the county where your spouse resides if your spouse is the only party who has lived in Texas for the past 6 months. In cases involving children, venue is proper in the county where the child has lived for the past 6 months.

The next step in obtaining a divorce is establishing the existence of a valid marriage, which can be accomplished by presenting evidence of the marriage license and certificate, by testimony of witnesses, the person who performed the ceremony, etc. Once the existence of a valid marriage is established, you must prove there is at least one ground for divorce. Some grounds for divorce include insupportability, living apart, cruelty, adultery, felony convictions, and abandonment.

Once the suit for divorce is filed with the court, your spouse must be served with citation, meaning he must be provided with copies of the divorce papers. Once your spouse is served with the divorce papers, he/she must file a response no later than 10:00 a.m. on the first Monday following twenty (20) days from the date of service. If your spouse disagrees with anything in the divorce papers (contests the divorce), the response is his/her opportunity to tell his/her side of the story.

If the divorce is contested, then there will likely be a series of court appearances to work out those issues. If the divorce is not contested (an uncontested divorce), your spouse simply needs to sign the papers and send them back to you and/or the court.


As shown above, Obergefell allowed everyone to marry the person they love, regardless of gender. But, it did not solve everything. There are still questions that our legislature needs to answer and changes that need to be made to our Texas Family Code. So, if you, or anyone you know, needs help obtaining a same-sex divorce in Texas, please give us a call at (512) 817-4017 for a consultation with one our attorneys.


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