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Everything You Need to Know About Same Sex Divorces in Texas

Since same sex marriages have been made legal by the Supreme Court, same sex divorces are now possible as well. People are still confused because not all states had acknowledged that same sex marriages were legal prior to 2015 and many are still wondering if it’s possible to have a same-sex marriage in Texas and how the state deals with same sex divorces.
Texas was one of the states in the US that did not legalize same sex marriages prior to 2015. Because of this, if you have lived in Texas prior to 2015 and you’ve tried to get a same sex divorce, the courts couldn’t have done anything to help you. Since same sex marriages were not recognized in the entire state until 2015, it goes without saying that same sex divorces were also impossible within the state during that period.
Of course, after that Supreme court decision legalizing same sex marriages in 50 states, a lot of things have changed.

Same Sex Divorces VS Traditional divorces

After the Supreme Court has announced its decision, the laws that apply to traditional marriages now apply to same sex marriages. With this said, laws on traditional divorces can now be applied to same sex divorces in Texas. If you already know about the community property laws in Texas and how it’s divided during a divorce, you can now apply that to same sex divorces too. Division of property, assets, and debts will be divided in same sex divorces the same way it is divided in traditional divorces.

If you are not familiar how community property is dealt with during a divorce, it’s basically this: Any type of income or property incurred during the course of the marriage will be subject to division once the divorce commences. This includes wages and income from investment and real estate. Excluded are income or property that were personal gifts to you, even if those were given during the marriage. If there is equity in any property that was bought during the span of your marriage, it is also subject to division during the divorce. The same rule applies to debts.
If you were married in another state and you have signed a prenuptial agreement, it will also be honored in the state of Texas now. You should include the agreement in your divorce petition and attach a copy of it.

Same Sex Common-Law Marriages

Since common law marriages are acknowledged in Texas, it also applies to same-sex marriages. The same requirements with traditional common law marriages must be met as well. These includes:
1. You and your common law spouse must mutually provide consent to be married.
2. You should have lived together for a certain length of time within the state of Texas.
3. You should have referred to each other as husband and wife in public.

Same Sex Common Law Marriages Before 2015

The decision of the Supreme Court applies retroactively in all states. If you’re wondering what will happen if you’ve been a common-law married couple prior to 2015, there might be no definite answers to your questions. However, if you met all the requirements of the state of Texas regarding common-law marriages, you can have a strong argument in court that your marriages were valid. You have to remember though that if you broke up and separate for at least two years without reconciliation, the law will presume that your marriage has never existed.

If your concern is all about same sex divorces after a common law marriage, like traditional marriages, you must establish the exact date your marriage began. It can be quite difficult to establish the definite starting date of same sex common law marriages. This is mainly because of the sometimes contradicting laws in many areas related to same sex marriages.
If you have started your same sex common law marriage in a state that originally acknowledged same sex marriages, you probably have a document that certified the start of your common law marriage in your possession.

Since Texas has not honored same sex marriages until that Supreme Court ruling in 2015, you will have to present to the court solid evidence to prove the start and the existence of your same sex common law marriage. This will play a big role in securing retirement benefits after same sex divorces in Texas.

If you have any concerns about same sex divorces in Texas, you need an attorney who is skilled and can keep up with the changing times. Find one who can assist you appropriately and can make you comfortable so that your same sex divorce issues can be solved smoothly and uneventfully.

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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas. If you have any questions you can contact him at