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Family Law


June 24, 2022


Can I Get a Same-Sex Divorce in Texas?

Yes, you can get a same-sex divorce in Texas. The process is just nearly identical to an opposite-sex relationship. No matter what your marriage looks like, the choice to part ways with your partner is a major decision, one that no one ever plans to make at the beginning of a relationship. Gay and LGBTQ divorce, like any dissolution, can be complex and stressful

LGBTQ couples must go through the divorce process whether they are ending a legal marriage or dissolving an informal or common-law marriage. There is no “common law divorce” in Texas — couples that enjoyed the benefits of common law marriage must still go through the traditional divorce process.

At Brooks & Radchenko, our divorce lawyers in Texas understand behind every case we handle, is a real person who needs help. We provide compassionate legal representation for our clients while aggressively advocating for the best possible outcome.

Texas LGBTQ Law

how to file same sex divorce in texas

LGBTQ is widely known to stand for lesbian, gay, bisexual, transgender, and queer or questioning adults. Thanks to marriage equality in all 50 states, all members of the LGBTQ community in Texas can enjoy the perks and benefits of marriage that same-sex couples enjoy — everything from tax benefits to insurance benefits. In line with marriage equality, when marriages end, members of the LGBTQ community must also complete the same process of divorce (whether the divorce was a formal union or an informal common-law divorce).

When going through a divorce, gay and LGBTQ couples may face unique challenges, especially when minor children are involved that have not been officially adopted by a non-biological parent. When a child is born to one parent during a same-sex relationship or marriage, custody outcomes can vary if the divorce is contested and parents cannot agree on a custody arrangement.

Does Texas Recognize Same-Sex Marriage?

The answer to “Can gay couples get married in Texas?” is: Yes, absolutely! Same-sex marriage is recognized in Texas and has been since Obergefell v. Hodges, the landmark 2015 U.S. Supreme Court case. This case determined that the fundamental right to marry is guaranteed to same-sex couples by two parts of the Fourteenth Amendment to the United States Constitution:

  • The Due Process Clause: Prohibits arbitrary deprivation of "life, liberty, or property" by the government.
  • The Equal Protection Clause: Prohibits state governments from enacting criminal laws that discriminate without reason.

Can I Get a Divorce In Texas?

Texas has residency rules for filing for divorce. Under Tex. Fam. Code § 6.301, to file for divorce in Texas, one spouse must have lived in Texas for at least the first 6 months, and you must have resided in the county where you file for the past 90 days. If you do not meet the residency requirements, it may be possible to file for divorce in another county or state.

Grounds for Same-Sex Divorce in Texas

Grounds for Same-Sex Divorce in Texas

There are several legal grounds for a Texas divorce in the Texas family code:

  • Insupportability (No-fault divorce, similar to "irreconcilable differences" or "incompatibility")
  • Adultery
  • Cruelty
  • Felony conviction and imprisonment
  • Abuse of alcohol or drugs
  • Abandonment
  • Living in separate residences for more than 3 years
  • Confinement to a mental hospital

Are LGBT Rights in Texas the Same as for Heterosexual Couples?

In Texas, same-sex marriage is legal and LGBTQ couples have the same rights to marry or divorce as opposite-sex married couples. Informal, common-law marriage is available to same-sex couples as well. For a common-law marriage to be recognized, both members must be 18 years or older, must not be related to each other by consanguinity (see Tex. Fam. Code § 6.201), and must be legally single (not married to anyone else).

How to File Same-Sex Divorce in Texas

Getting divorced in Texas does not have to be expensive, and there are things you can do to reduce the cost of your divorce. It does not have to be expensive if you and your spouse do not dispute the terms of the divorce in Texas and you file your paperwork online.

Same-Sex Divorce Online

same sex divorce

If your same-sex divorce is uncontested, you do have the option of preparing for the divorce online. Various document preparation services allow you to complete the majority of divorce document drafting online. These family law services promise clients to be efficient and affordable, but "the absolute cheapest" is not the best route for an uncontested divorce, whether it is the opposite sex or same sex.

Same-Sex Divorce Papers in Texas

The divorce forms and papers necessary to file your divorce and establish property division must be filed in court. It is possible for you to file an uncontested same-sex divorce in Texas, without a lawyer. But in all family law matters, especially when your future is at stake, you should protect yourself. Understand your rights, even if you and your spouse agree on property division and other terms. Before you file for a divorce or agree to divorce terms, speak with a Texas family law attorney about your rights.

How Long Will LGBT Divorce in Texas Take?

Once filed, Texas has a mandatory 60-day waiting period for a divorce to be finalized. However, the time period is not solely determined by the parties' preparedness and agreeability. If your court has a full docket, your divorce process may be delayed. Most Texas divorces take between six to twelve months to be finalized. A divorce may be delayed if:

  • The whereabouts of the other party are not known.
  • The other party avoids being served or refuses to sign paperwork.
  • The other party contests the divorce or files frivolous motions.
  • The other party refuses to respond to discovery (requests for information).
  • The other party asks for an extension of the time.
  • The other party changes legal counsel.

Whether intentional or unintentional, delays in proceedings can be extremely frustrating. Having experienced representation on your side can ensure your case moves along as efficiently as possible so that you can obtain your divorce decree and move forward with your life.

Property and Assets Division in LGBTQ Divorce  

Texas is a community property state, which means that income and assets acquired by either spouse during the marriage are shared by both spouses. In any divorce, the division of property is not always a clean split. Courts may order an unequal division in situations where there are "just and right" reasons, specifically “having due regard for the rights of each party and any children of the marriage” (Tex. Fam. Code Ann. § 7.001). This verbiage can make property division strongly disputed as much in gay and lesbian divorce as for heterosexual couples.

How to Determine Child Custody in Texas Same-Sex Divorces?

lgbt divorce

When parents divorce in Texas, they must provide a written agreement that summarizes each other's responsibilities in raising the children. Child custody may be a sole or custody arrangement.

Under Texas Family Code, child custody includes two elements:

  • Conservatorship: Called legal custody in other states, conservatorship refers to making decisions for the child with regard to education, medical care, and religion.
  • Possession and Access: Called physical custody in other states, possession, and access encompasses which parents the children spend time with, how the time is split, and where they live.

It is always better — whenever possible — when custody arrangements can be worked out with the other parent based on the best interests of the children.

Will One Parent Be Required to Pay Child Support After a Same-Sex Divorce?

In Texas, child support is based on a formula set, and the other parent who does not have primary possession must pay child support to the parent with primary possession.

That said, Texas Family Code specifically states that joint custody (the “appointment of joint managing conservators”) does not affect the designation of child support in Texas.

When the net monthly income is less than $7,500 a month, a judge will take that amount and multiply it by a percentage which is determined by the number of children the parent supports (i.e. 1 child = 20%, 2 children = 25%, 3 children = 30%, and so on). Support continues until the child turns 18 or graduates from high school, whichever is later. It may also be terminated if the child gets married or dies.

Is Spousal Support Ordered After a Same-Sex Divorce in Texas?

can i get a same sex divorce in texas

In Texas, “alimony” is called “maintenance” or “spousal maintenance”. This alimony or spousal support is not automatic in Texas - and is actually more difficult to acquire than in other states. In any divorce in Texas, alimony can be determined contractually (via mutual agreement).

In order for the court to award spousal support, one spouse must prove that after the divorce, they will lack sufficient property to meet their reasonable needs. Additionally, the party requesting must prove one of the following under Sec.8.051 of the Family Code:

  • The marriage lasted more than 10 years.
  • The spouse must care for a child with a physical or mental disability.
  • The spouse is unable to find a job to earn sufficient income due to health issues or age.

Spousal support cannot be more than $5,000 per month or more than 20% of the paying spouse's gross income. It is always temporary, with one exception — disability. The court establishes some ways to enforce a maintenance order, such as income withholding — but these do not apply to contractual spousal.

What If There Has Been Family Violence or I Feel Unsafe?

Domestic violence rose in the aftermath of the COVID-19 pandemic, in Texas and across the country. LGBTQ communities were not immune.

Family violence, including verbal threats of violence, physical violence, and sexual assault, can make a difficult family situation even more difficult. As we saw in the 2022 defamation trial between Johnny Depp and Amber Heard, allegations of violence can be extremely challenging (regardless of social or financial status).

If you are in a domestic violence situation, your priority must be to protect yourself and your children. If you are dealing with a violent or unpredictable individual, attempts at civil and amicable relations should not be attempted, and cohabiting during a divorce may not be an option.

Texas law has protections in place to protect victims of family violence, including allowing a judge to waive the mandatory 60-day waiting period. Domestic violence can affect the outcome of a divorce in Texas, and your attorney can help you decide your best course of action, including filing for an at-fault divorce and getting a protective order. If you are facing domestic violence in an LGBTQ relationship, help is available. The National Domestic Violence Hotline can be reached 24/7 at 800-799-7233.

Is There Legal Separation for LGBTQ Couples in Texas?

does texas recognize same sex marriage

Legal separation can be helpful in a few situations, like when there are religious belief issues with a divorce, or when a couple wishes to live separately while maintaining health insurance or other benefits. While most states offer legal separation as an alternative to divorce, Texas does not (along with five other states: Delaware, Florida, Georgia, Mississippi, and Pennsylvania).

It is possible to get temporary orders to accomplish some of the goals of a legal separation in gay divorce. This is not mandatory but can be beneficial to protecting parties' interests. Temporary orders can specify provisions for temporary:

  • Alimony and child support payments.
  • Conservatorship or custody of minor children.
  • Provision of medical insurance, homeowners/renters insurance, and health insurance premiums.
  • Payment of bills and financial obligations.
  • Use of motor vehicles.
  • Payment of attorneys' fees.

A mutual separation agreement prepared by a family lawyer can also meet the objective of specifying rights and duties while parties are living apart. It can outline requirements for visitation, property rights, and financial support.

Schedule a Consultation with a Texas LGBTQ Divorce Attorney

If you are preparing for a same-sex divorce or have questions about the gay marriage divorce process, you do not have to navigate this difficult chapter alone. A family law attorney in Texas can help you protect your rights as you make the tough but important decisions ahead. At Family Law of North Texas, we will provide you with support, guidance, and advice while you navigate your separation. Contact us to speak with a lawyer about your situation.

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