Articles Posted in Same-Sex Marriage

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Texas divorces of same-sex couples can involve unique legal issues. Recently, a Texas appeals court considered three related cases involving one spouse’s relationship to a child born during the marriage.

According to the appeals court, the parties, A. and J., signed an agreement with a reproductive services agency during the marriage. A. gave birth to R.G.S. following a reproductive procedure using donor sperm. When A. filed for divorce in 2020, she identified R.G.S. as a child born of the marriage.

The parties entered into a Mediated Settlement Agreement (“MSA”), pursuant to which J. was to be adjudicated a parent of the child. The court asked the parties’ attorneys to brief on the issue of whether the court could “adjudicate a second mom.”

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iStock-170042608-300x200Texas is among the states that still recognize informal marriage, sometimes called “common-law marriage.” A couple may establish an informal marriage by signing a document entitled “declaration of informal marriage.”  In the absence of a declaration, a party may also prove the existence of a Texas informal marriage through evidence that the couple agreed to be married, subsequently lived together as spouses in Texas, and represented to others that they were married.  Tex. Fam. Code § 2.401.  Although informal marriages are generally treated the same as formal marriages, the existence of an informal marriage can be far more difficult to prove.

Man Files for Divorce from Partner – No Marriage Found to Exist

A man, E.L., recently challenged a jury’s finding that he and his long-term same-sex partner, J.M., were not in an informal marriage. The parties started dating in 1997 and lived together from June 1998 until January 2017.  They were not formally married, and there was no evidence they had ever filed a declaration of informal marriage.  E.L. filed a lawsuit seeking a divorce from J.M.  The jury found the parties were not married.  E.L. appealed, arguing there was insufficient evidence supporting that finding and that the evidence conclusively proved the parties were married.

The jury was asked to determine if the parties were married.

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Texas family law was written before marriage between same-sex partners was recognized.  Many of the statutes are written in gendered terms that do not contemplate the possibility of marriage between same-sex partners or parents who are the same sex.  A recent case considered whether the female spouse of a child’s biological and birth mother was a parent under Texas law.

The appellant had a child at the time of the marriage and the parties discussed having a child together.  A friend of the parties agreed to be their sperm donor.  They agreed the appellee would carry the child.  According to the appeals court’s opinion, the appellant performed the insemination in the parties’ apartment.   The appellant accompanied the appellee to most of her doctor’s appointments.  She was at the hospital when the baby was born and took family leave to be with the baby. When the parties divorced, the trial court found the appellant was also a parent to the child and ordered her to pay child support. She appealed.

The appellant argued “parents” are defined as a mother and father in the Texas Family Code.  The appellee argued that same-sex marriage and related benefits are recognized in the United States pursuant to U.S. Supreme Court decisions and Texas law must be read in light of those decisions.

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Surrogacy is the process of a mother carrying a child for a family who can’t conceive. The process can be a godsend for parents who do not have the option of traditional conception. As surrogacy works in Texas, it involves a life-altering event for at least three parties– the intended parents and the gestational mother. Naturally, it is a delicate process with many emotions and moving parts. Surrogacy can be a great option for many reasons- whether the parents are a same-sex couple, medical issues prevent a mother from carrying a baby, or if either parent is concerned about passing down a genetic disorder or defect. For anyone thinking about growing a family through surrogacy, keep in mind that the legal process is just as essential as the biological process. Continue Reading ›

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In a positively surprising ruling, a federal Court refused to dismiss a hearing where FedEx denied survivor benefits to a same-sex spouse. The Plaintiff is Stacy Schuett and she was in a committed relationship for 27 years with her spouse when they were finally married in a civil ceremony in Sonoma County in June of 2013. A day later, her wife, Lesly Taboada-Hall passed away after a long struggle with cancer. The deceased wife worked for FedEx for 26 years and was fully vested in her company’s retirement plan. It was not until six days after her death that same-sex marriage licenses were available in the state of California. At this time, the surviving spouse, Stacy Schuett, submitted a claim as a surviving spouse entitling her to her deceased wife’s pension plan, but FedEx immediately denied her claim because they said she did not meet the definition of “spouse.”

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This past summer, the United States Supreme Court issued its landmark decision in Obergefell v. Hodges, which held that under the U.S. Constitution, no state may forbid same-sex couples from marrying and that no state may refuse to accept the legality of same-sex marriages performed elsewhere.  This Supreme Court opinion, however, did not address issues regarding children of same-sex marriages/partnerships.  As evidenced below, much work still remains to be done in this regard. Continue Reading ›

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The legalization of same-sex marriage may only be a few months old, but Texas’ informal marriage laws may provide for marriage recognition dating back decades. On June 26, 2015 the United States Supreme Court issued its ruling in Obergefell v. Hodges, legalizing same-sex marriage in every state of the Union. Since the rendering of the Court’s ruling, counties across the state of Texas have issued thousands of marriage licenses to same-sex couples. Upon receipt of a marriage license, these couples become eligible to enter into formal marriage. However, Texas also recognizes informal marriage, frequently referred to as common law marriage. Texas allows parties to an informal marriage to hold, as their legal wedding date, the earliest date at which all statutory requirements of an informal marriage were satisfied. What does this mean for same-sex couples who satisfied the statutory requirements before the legalization of same-sex marriage in Texas?

Under the Texas Family Code, an informal marriage may be proved by evidence that: (1) a declaration of marriage has been signed; or (2) by showing that the parties agreed to be married and after the agreement they cohabited together, in Texas, as a married couple, and represented themselves to others, in Texas, to be married. (see Texas Family Code 2.401). Upon satisfaction of the second prong, the couple may file a declaration of marriage and list, as their date of marriage, the earliest date at which all requirements were concurrently satisfied. Of course, same-sex couples are now afforded the ability to enter into informal marriage. The question is, however, will same-sex couples who satisfied all requirements of the law be allowed to declare their marriages to a date prior to June 16, 2015?

Initially, it was believed that state officials would hold that same-sex common law marriages could not be dated before June 26, 2015, as same-sex marriages were void ab initio under the law. However, with respect to a recent declaration of marriage filed by a same-sex couple in Tarrant County, Texas, the Texas Department of State Health Services stated that “Applicants, regardless of gender, may apply for an informal marriage license using any date applicable to their relationship.” Accordingly, this Tarrant County couple was allowed to date their informal marriage to 1992.

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Friday, June 26, 2015, was unquestionably a historic day in the realm of family law, constitutional law, and for the country as a whole.  On this day, a majority of the Supreme Court of the United States held that the Fourteenth Amendment of the U.S. Constitution requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.  Justice Kennedy, who delivered the majority opinion of the Court, was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan in this momentous decision.   Continue Reading ›

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A federal district judge in Texas rules that Texas’s Constitutional ban on same-sex marriage violated the Equal Protection Clause of the United States Constitution.  That ruling was stayed pending appeal—a common procedure in this type of case (when a law has been ruled unconstitutional, it is common to keep the law in place until the appeals process is exhausted).  This is an important note as the United States Supreme Court rejected a Petition from the state of Alabama to stay same-sex marriage until the issue is resolved by the Supreme Court of the United States.  Many believe this move by the majority of the United States Supreme Court Justices is an indication of how they might ultimately rule on whether individual states can decide whether or not same-sex couples can get married within their state.

The state of Texas still has a Constitutional ban on same-sex marriage; however, in light of the Federal District Court Judge’s ruling that Texas’s Constitutional ban violated the United States Constitution, a Travis County judge ordered the Clerk of Travis County to issue a marriage license to Sarah Goodfriend and Suzanne Bryant.  The Judge issues a “one-time” exception because Ms. Goodfriend has deteriorating health with ovarian cancer.  On Friday, Texas’s Attorney General, Ken Paxton filed a petition with the Texas Supreme Court in order to declare the marriage license issued by the Travis County Clerk to Ms. Goodfriend and Ms. Bryant to be declared void. Continue Reading ›

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