Unique challenges for divorcing same-sex couples in Texas

There are some unique challenges awaiting same-sex divorcing couples

Same-sex marriage has only been legal in Texas for a few short years. During that time, countless gay and lesbian couples became legally married here or in other locales across the country. Same-sex couples finally have the right to marry, but it may still be more difficult when they get divorced, and they face some unique challenges along the way to dissolving a marriage.

Child custody considerations

When a heterosexual married couple has a child, the husband is legally presumed as the child’s legal father. No additional steps are required for the father to have legal parenting rights for a child in that situation. When a same-sex couple has a child, however, there are very important steps to take. For example, if the child is not a biological child of either partner, a formal adoption must occur before legal parenting rights including custody and parenting time are imbued.

If the child of a same-sex couple is the biological child of one of them and was conceived via assisted reproductive technologies, the non-biological parent must have formally adopted the child in order to seek custody, parenting time, child support or other parental rights. The same is true if the parties each are the biological parent of a different child of the relationship; the non-biological parent still must have legally adopted the child in order to have any parental rights.

This remains true even if there are multiple siblings in the family, and not all of them have the same biological parent. Without that additional formal step of adoption, the non-biological parent will have no legal parental rights, notwithstanding past actions, involvement, contributions, and love for the benefit of the child. Siblings could very well be split up during a same-sex divorce simply because the judge’s hands are tied by the laws defining parental rights.

Property division challenges

Texas courts allow for a “just and right” division of community marital property in a divorce. This does not necessarily mean that the division will be equal, and it does not take into consideration property that the parties held, even jointly, prior to the marriage taking place. This may uniquely impact same-sex couples because many of them may have cohabited, often for years or even decades, while awaiting the ability to legally marry. It can be much more difficult, after years of commingling prior to marriage, to determine what is “separate” property for purposes of asset division.

Moving forward

Divorce is difficult in even the best circumstances. Same-sex couples face challenges that many heterosexual couples won’t. If you are in a same-sex marriage in Plano, McKinney, Dallas or in North Texas, generally, and you are considering divorce, you may benefit from consulting with a Board-certified Family Law expert attorney experienced in handling the intricacies of same-sex divorce.