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Same-Sex Marriage and Divorce in Texas


Texas is considered as one of the progressive states in the United States because it recognizes same-sex marriages as legal. This recently was implemented last June 26, 2015 and has granted the privilege of marriage to partners of the same gender. More about its legalization is explained in the landmark case Obergefell v. Hodges. Thanks to this case that has changed the books of History, same-sex couples are now given marriage rights in the same way that opposite-sex couples do.

Getting Married

Being a same-sex couple in Texas, in order to get married, the couple must have a license to marry. This can be availed at the office of the county clerk. Afterwards, the court requires a waiting time of at least 72 hours before the couple can get married. Marriage should be initiated by a judge or an authorized religious official, where the couple is required to sign a marriage license issued by the court in their county of residence. A sworn application of the couple should indicate a detailed narration of the facts that prove that both individuals involved in the marriage is legally capable of entering into the marriage. For individuals who wish to get into a marital relationship but are below the age of 18 years old, they should acquire the written consent of their parents, or a court order that legalizes them to get married. In the same manner as opposite-sex marriages, it is also important to note that individuals are not allowed to marry those who are related to them by blood, those who are not currently married, or those who wish to marry a current step-child or step-parent. This is covered by the other statutes of the law that does not allow such to be involved in a marriage.

When the court in the county of residence issues the marriage license,  the marriage ceremony must be done within 31 days of its issuance. However, the couple must consider the 72-hour waiting period for the validity of the license. Those who are authorized to perform the ceremony may be a Justice of the Peace, Minister, Rabbi, or Priest. There are also other authorized officers, as long as they are able to show valid and concrete proof that they have the ability to perform the marriage and will be recognized by the law.

If there is an instance that the married couple performed the ceremony outside the state of Texas, or even outside the country, it is important to consider if the ceremony was performed in a place where same-sex marriage is also considered so that it will also be recognized in the state of Texas

If the couple does not want to enter into a full marriage ceremony in front of a priest, they have the option to enter another form of marriage which is rather more informal compared to the initially discussed type of marriage. This is called the “Common Law” Marriage. This is where the couple only needs to indicate their legal marriage date where they get to meet all the requirements to enter a marriage. More specifically, a “common law” marriage can be proved in such a way that there is a declaration of marriage that was signed by the parties, and that the parties agree to be married and are to live together in Texas. The downside of the “common law” marriage however is that there are other states that do not recognize this. Most states require that the couples go through the process of applying for a license and going through the entire marriage ceremony.

Getting Divorced

It is good to note that the state of Texas recognizes that same-sex marriages should be presented with the same rights given to opposite-sex marriages. That is why, in the same way that opposite-sex marriages have a divorce, same-sex marriages also have this. It is also an advantage that the process of a divorce of an opposite-sex couple is the same as the same-sex couple.

The court allows the same-sex couple to avail the types of divorce where it is either contested or uncontested. A contested divorce is when both of the spouses agree that the case should go on, and that they agree to have the divorce fully. If it is evident that violence, or harm is involved which made the case arise, the family member who is the victim may demand for a protective order from the court. This will serve as protection given by the government to those whose lives are at stake, especially the children. The country gives the family the option to stay in a domestic violence shelter, or legal aid office so that these can assist those who are in danger to claim a protective order. If the protective order is taking too long to acquire, a faster solution is for the court to issue a Temporary Restraining Order so that the abuser or the family member that causes harm or violence is restrained from participating in the case.

One of the advantages of filing a divorce in the state of Texas is that couples can simply give the reason that the relationship just did not work out in the end. It does not require that one of the members had a “fault” in the marriage in order to make the divorce valid. Some other grounds that are also considered valid may be abuse, abandonment, or adultery.

Just the same as opposite-sex marriages, a divorce for same-sex marriages take around 60 days once it is filed for it to arrive at a decision by the court. There are also other factors to consider such as the visitation rights and custody of the children, if ever the same-sex couple has any. The protection of the children will apply to all kinds, whether the children are children by blood, or are adopted. If there are children involved in the marriage, it is most important to consult an LGBT Family Lawyer in order to give clear action steps on the custody and visitation rights.

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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 timothy.hutton@austintexaslegal.com

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