Before 2015, when the U.S. Supreme Court ruled that men and women could marry persons of the same-sex, I had little experience regarding same-sex marriage or divorce, as Texas had been a state where only a man and a woman could legally marry. While I had helped same-sex couples unwind financial and parenting relationships, this assistance was without the guidance of laws on marriage and divorce, which only applied to heterosexual couples. Now, our firm has handled and continues to work more and more with same-sex marriages and divorces; along the way, we have become knowledgeable of the unique, complex issues that can arise.
Obergefell v. Hodges
Obergefell v. Hodges, 576 U.S. ___(2015) was a landmark United States Supreme Court case in which the Court held in a 5–4 decision that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. This case has been applied to Texas specifically by additional higher court rulings. As a result, although the Texas legislature hasn’t changed the laws on the books, the courts are granting same-sex couples the right to divorce (whether married in or out of Texas).
This raises several inimitable issues in Texas. First, in a state where the government is generally hostile to same-sex relationships (while it has clearly been struck down by the Supreme Court, Texas still has a penal statute which criminalizes same-sex relations), those of us in family law (and other areas of law practice involving same-sex relationships) don’t expect the Legislature to provide much guidance in the form of enacting statutes. In fact, it appears that the opposite is occurring: the legislature and the Texas Supreme Court are either ignoring or narrowing the application of Obergefell. So, the big money question becomes: in the practice of family law in Texas regarding same-sex marriage and divorce, how do we realistically apply the Obergefell decision in a way that will stand in court?
Same-sex couples may marry, but what about same-sex divorce?
At this point, it is clear in Texas that same-sex couples may marry. This is unambiguous in Obergefell, and Texas court clerks began issuing licenses right away. But Obergefell doesn’t specifically address the issue of same-sex divorce. The closest it comes is this: “The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” While the word divorce is not mentioned, it logically follows that this holding would resolve that all rights of heterosexual couples would be allowed to same-sex couples, including divorce. However, that has yet to be seen in Texas.
As stated, Texas trial courts are allowing same sex divorces; I’m not aware of anyone arguing that point. An issue related to divorce which is unclear, though, and problematic, is that of determining the date of the parties’ marriage. Texas allows marriage to occur “informally,” also called ‘common law marriage.’ This is when a couple agrees to be married, holds out to others as being married, and lives together. This is rare among heterosexual couples as they can easily obtain a marriage license if they want to marry.
The common law marriage question
However, because same sex couples living in Texas could not marry here, many essentially created common law marriages by having a wedding and then living together (agreed to be married, held out to others, and lived together, the characteristics of the common-law marriage). The question is will those common-law marriages be upheld when Texas, at the time, did not allow same sex marriage? And what if the couple had a formal, licensed marriage after Obergefell, after having a common law marriage earlier in the relationship? How does one decide the true date of marriage? Can it only be after the Obergefell decision in June of 2015 even if a ceremony occurred before? Because community property begins to accumulate on the date of marriage in Texas, this matter will be of great import in certain divorces.
One party may greatly benefit by claiming an earlier date for the marriage. Without legislation, this important issue will be determined by individual trial judges until a case is appealed and some higher courts rule definitively. In the meantime, it’ll be a free for all. For different reasons than divorce, the issue of the date of marriage will be litigated in other matters, such as spousal rights to employee benefits. These cases may solve the issue of the date of marriage before resolution in divorce law, as some of these cases are winding through the courts already.
Date of marriage is key
In general, the same rules which apply to heterosexual couples in property division will apply to same sex couples: community and separate property laws (most assets accumulated from the date of marriage to date of divorce are community property to be divided between the two parties). However, the date of marriage will determine when the community estate begins; therefore, the common-law question may lead to significant legal fights with no easy answers.
This is the first blog in a series on same sex marriage in Texas. Next up for discussion: how might parenting issues be affected by the Obergefell decision?
What happens with the kids in a same-sex divorce?
August 28, 2017
My last blog examined same-sex divorce with an emphasis on law regarding property division and basic rights spouses possess in a divorce scenario. As a brief refresh, Obergefell v. Hodges, 135 S. Ct. 2584 (2015), was the United States Supreme Court case in which the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. While the Texas legislature has yet to change the laws on the actual books, the Texas courts today grant same-sex couples the right to marry and divorce (whether married in or out of Texas). As I stated previously in Part One, however, complex issues arise when same-sex couples seek to reconcile their personal lives with the law in the case of a same-sex divorce.
Beyond property division, the most emotionally sensitive topic we address in same-sex marriage is the same thorny issue that arises with most divorcing couples. Their kids. For a heterosexual couple, the laws regarding children in the case of divorce—where they live, who pays child support, who makes medical or college decisions, etc.—are fairly standard, although flexible. A divorcing party may not like an answer he or she receives from the court regarding possession (also called visitation), insurance, or support, but the law regarding same is written. A judge has guidelines to follow. There is structure. With same sex marriages, not so.
Same-sex parents have additional considerations
The Obergefell decision simply did not address legal parentage in same-sex relationships. The water is murky at best. So when same-sex couples with children divorce, it can be maddening and frightening navigating uncharted territory. One argument made is that since Obergefell grants same-sex couples the same general rights as opposite sex individuals, the implication exists that a child born to one spouse is implicitly the child of the other. However, in current Texas law, in female same-sex marriages, for example, there is no presumption that the non-biological parent is a legal parent.
Obergefell doesn’t define any legal rights granted in regard to children, and Texas law doesn’t provide any help. With regard to custody, the legal right is what matters. Even in opposite sex relationships, the parentage of one partner can be challenged with DNA testing. In same-sex marriages, the current laws would provide the same opportunity, but in most cases, the other same sex parent is not going to be a biological parent.
Understanding custody and visitation
The confusion continues with the law regarding same-sex marriage and custody and/or visitation of children. If a same-sex couple chooses to divorce, does this give the non-biological parent the right to seek custody or visitation of the children? Again, in Obergefell, this situation is not contemplated: nothing in the law about visitation or custody changed as a result of the Supreme Court ruling. Certain, extremely limited, provisions were already in place for any person residing with the child for certain periods of time and the standing needed to seek certain access. However, in many situations, a same-sex partner would not meet the requirements of this section, and would therefore have no right to seek access. Two potentially disastrous scenarios can arise: 1.) a lack in legal status can result in a primary stay-at-home parent of a child, even of many years, having no rights to the child when the marriage ends; 2.) a lack of legal status can result in the family bread-winner and supporter of the family deciding to leave, yet having no requirement, legally speaking, to provide any continued support for children.
Additionally, Obergefell says nothing regarding adoption. As a result, nothing has changed about adoption rights in Texas from Obergefell. However, the Texas legislature recently passed a law that allows public and private adoption agencies to choose not to allow same-sex couples to adopt. Historically, this has been a court by court determination and courts have been allowing same sex adoptions more and more.
The bottom line is that until the legislature passes laws to deal with these issues, individual judges have the obligation to decide the future of Texas children in the case of same-sex divorce on a case by case basis. There could be a lot of confusion around these issues for quite some time.
A Real-Life Example of Same-Sex Divorce Complications
February 9, 2016
When the Supreme Court made its landmark decision last year to legalize same-sex marriage (Obergefell v. Hodges), I was particularly curious, as a family lawyer, to see what issues might arise in same-sex divorce cases and how they’d differ from divorces involving heterosexual couples. Although I’ve helped same sex couples resolve their financial and child-related disputes over the years, it had to be done without much guidance from the laws of Texas. And, even though you would think that “a divorce is a divorce” regardless of the sex of the parties, I’ve come to realize that it’s not quite that simple.
I’m in the midst of my first same-sex divorce. It involves two women who were married nearly a decade ago outside of Texas. And though the couple ended their relationship a number of years ago, they couldn’t do so officially because Texas didn’t recognize the marriage legally until last year’s Supreme Court decision made them do so, and because they didn’t meet the residency requirements for divorce in states which did recognize the marriage and allow divorce.
And the couple might have not sought an official divorce, but my client has been wanting to marry her new partner, and can’t legally do so until she and her former partner obtain a divorce. I assume there are a number of couples in this unexpected “good news-bad news” situation as a result of the ability to marry and to divorce now in Texas.
Because this couple has been separated for a number of years, they’ve already worked through the issues that typically occupy divorcing couples: asset allocation and parenting plans. My client gave birth to a child during the marriage, and the other partner became a legal parent through adoption, so the parenting plan was their most challenging issue when they split up. They decided on a plan fairly close to 50/50 parenting time for each. And because things haven’t always gone smoothly with that plan, there will need to be some negotiation over some aspects of it.
Parenting plans in same-sex divorce
Parenting plans will certainly be an interesting facet of same-sex divorce to keep an eye on. In the majority of heterosexual divorces, the children in the marriage are the biological offspring of both parents in the case, and both their rights as natural parents typically factor into the case. With lesbian couples, one of the parents is frequently the birthmother and the other an adoptive parent, or the child might be adopted by both parents.
The birthmother, of course, isn’t automatically granted primary possession of a child in every case, but many cases end up with parenting plans (and child support responsibilities) that are predicated on the idea of the birthmother as a primary parent. I’m curious to see how, over time and with more same-sex divorce cases, our notions of biological parent rights might change.
Will judges hearing same sex divorces be more likely to grant equal parenting time to those couples? Or will there be a preference/bias for the biological parent? Will there be more of a preference for a mother who carried the child through pregnancy than for a father who contributed the sperm as the biological father?
How will Texas courts handle common-law marriages?
And how might the legal decisions around common law marriages factor into same-sex divorce rulings? If the couple met all of the requirements of common law marriage, even though they never were formally married, and have been apart for some time, do they need to obtain a divorce? If an ex-partner passed away, could there be a probate fight between the living ex-partner and the other partner’s family members, based on common law marriage? All of this seems very likely, and probably not anticipated by proponents of same sex marriage. I think there will be a messy period of litigation over these sorts of issues for some time until everyone is used to the new paradigm.
For same-sex couples in 2016, it’s a whole new world, and the ability to marry legally (and to have that marriage recognized wherever they live in the United States) provides tremendous upsides. But it’s not without its challenges – the ability to legally marry brings with it the ability to legally divorce (and perhaps the necessity), with the avenue of contentious litigation now as available to same-sex couples as it has been to heterosexual couples.
Because of the legal limbo that couples found themselves in prior to last year’s Supreme Court decision, many had to do what my client and her partner did before seeking a legal divorce – making a collaborative, principled decision about what’s best for them and their children going forward. I anticipate that the divorce process spectrum will be similar for same sex couples as it has been for heterosexual couples: some messy litigated ones, many resolved in mediation, many kitchen table resolutions, and some formally Collaborative. Although there will always be hard fought divorces, maybe the same sex community will embrace enlightened processes like Collaborative Divorce in larger numbers than heterosexual couples have. That would be a good thing for all.
About the Author
Larry Hance is managing partner and founder of the Dallas law firm Hance Law Group. With more than 35 years of experience in family law, Mr. Hance uses his experience with the legal system, judges and other lawyers to help clients achieve the best possible results.
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