Same-Sex Divorce

The U.S. Supreme Court’s 2015 ruling that state bans on same-sex marriages were unconstitutional granted same-sex couples the right to marry throughout the nation, and the right to have their marriages recognized in every state. It is an unfortunate reality, however, that many marriages end in divorce, and same-sex marriages are no exception. While many of the issues that arise in a same-sex divorce, such as dividing real estate, are the same as those in a divorce involving spouses of the opposite sex, there are some additional concerns a same-sex couple may have to consider during the divorce process. If you are in a same-sex marriage and want to file for a divorce, it is wise to speak with legal counsel proficient in handling same-sex divorces to help you protect your rights. At the McClure Law Group, our Dallas divorce lawyers are mindful of the additional factors that must be considered in same-sex divorce and will diligently advocate for your best interests.

A common issue that arises in same-sex divorce cases is establishing when the marriage began. If the parties were married or in a legal relationship in another state prior to 2015 or entered into a common law marriage, it will be necessary to document when the marriage began for purposes of determining how to divide assets and whether any spousal maintenance should be awarded.

Under Texas law, for the purposes of divorce, property is defined as either separate or community. Any property acquired during the marriage by either spouse is considered community property unless proven otherwise. Property obtained by either spouse prior to the marriage or obtained via a descent, devise or gift during the marriage is regarded as separate property. Additionally, property can be deemed separate via a pre-marital or post-nuptial agreement. The party arguing that property is separate must prove the nature of the property by clear and convincing evidence. In cases involving same-sex marriage, issues may arise in evaluating the nature of property the parties acquired jointly prior to marriage. If you are seeking a same-sex divorce, a skilled divorce attorney can help you assess how any property you obtained before or after your marriage may be characterized and distributed.

Many married same-sex couples have children born before or after the couple married, but often only one spouse is listed as a parent on the child's birth certificate or is legally considered the parent. Thus, it is critical for any person seeking a same-sex divorce to determine if it is necessary to formalize the adoption of any child he or she parented together with his or her estranged spouse to legally establish parental rights and obligations. It is also important to have both parents’ names on the child’s birth certificate to avoid any confusion during the divorce as to either party’s parental rights. Establishing the legal status of each parent will aid in the process of seeking visitation and conservatorship and establishing child support.

Texas has strict laws regarding eligibility for spousal maintenance. The party seeking maintenance must show that the parties have been married for 10 or more years and that he or she cannot support himself or herself. Additionally, a party may receive maintenance if his or her spouse was convicted of domestic violence within two years of the filing of the divorce action.

While parties weighing whether to pursue a same-sex divorce face the same emotional, financial, and legal ramifications of a couple seeking an opposite-sex divorce, same-sex divorces often involve additional issues and considerations not present in traditional divorce cases. If you or your spouse intends to seek a same-sex divorce, it is advisable to speak with an experienced divorce attorney regarding your case. At the McClure Law Group, we will work diligently to help you protect your rights and to obtain a divorce as effortlessly as possible. We also represent individuals in family law disputes in cities throughout Dallas, Denton, Grayson, Tarrant, Collin, and Rockwall Counties. You can reach us at 214.692.8200 or through our online form to schedule a meeting.