The topic of same-sex marriage is a particularly difficult one to discuss here in Texas because our state currently does not perform or even recognize such unions. But perhaps that’s exactly why we should discuss this complex issue. If the law does not recognize same-sex marriage, how are the courts able to address the other family law issues that are bound to arise?
In this week’s post, we will discuss a few issues that same-sex couples across the state may run into during the divorce process. And because of the complexity of their cases, we hope they will also see the need for a good lawyer who can tell them what rights they do have when it comes to these issues.
Divorce. The actual separation process can create major problems for same-sex couples because their unions are not recognized by the state. This means that even though the relationship has ended and both partners are no longer living together, they are still bound by the marriage license held in another state. Because of some recent federal court cases, this could create considerable problems, especially when it comes to filing and paying taxes.
Prenuptial agreements. These legal documents could become another source of contention in the event of a divorce. Chances are, if the state does not recognize a same-sex union, it will also not recognize the authority of the prenuptial agreement either. This can affect a number of things but more specifically how assets will be divided upon dissolution of the marriage.
Property division. In the absence of a prenuptial agreement, some same-sex couples may assume that their assets and liabilities will be subject to our state’s property division laws during a divorce. But once again, if the marriage is not considered valid, property division laws may not apply. This can leave an incredibly difficult question unanswered: who gets what when the relationship ends?
Child custody. The final issue we will discuss is child custody. Just like with heterosexual couples, same-sex couples may encounter child custody issues regardless of whether they were married or not. Either way, the courts will have to make some important decisions about who will gain custody of the child and whether to award visitation rights to the other partner. As you can imagine though, this can get incredibly complicated when state laws impede what may be in the child’s best interest.
Source: CNN, “Same-Sex Marriage Fast Facts,” Sept. 13, 2014