As society evolves and the legal landscape changes, the conversation around same-sex divorce has become increasingly relevant. In Texas, where traditional values often dominate, navigating a same-sex divorce can come with its own unique challenges. Here’s what you need to know about the process, your rights, and considerations specific to same-sex couples in the Lone Star State.
The Legal Landscape
Since the Supreme Court decision in Obergefell v. Hodges in 2015, same-sex marriage has been legal across the United States. This ruling not only validated same-sex unions but also laid the groundwork for same-sex divorce rights. Same-sex couples have the same right to file for divorce as any heterosexual couple; the process is much the same as for any opposite-sex couple, though there may be unique child custody issues not normally present in a divorce with a husband and wife.
Grounds for Divorce
In Texas, you can file for divorce on various grounds, including but not limited to:
- Insupportability: This is the most common ground and means the marriage has become insupportable due to discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation. This is a long and complicated way of saying that the spouses just don’t get along anymore and will not get back together.
- Cruelty: This ground applies if one spouse has treated the other in a cruel manner that renders further living together insupportable.
- Adultery: If one partner has cheated on the other, it can be cited as a reason for divorce. However, it is important to know that a grounds for divorce because of adultery is often difficult to achieve without solid proof of sexual infidelity.
- Abandonment: If one partner moves away, stays away for at least a year, and doesn’t intend on coming back, a divorce may be granted on grounds of abandonment.
- Living Apart: If the partners have lived apart for at least three years, this can be grounds for divorce.
For a more in-depth explanation of fault-based grounds for divorce, see sections 6.002-6.007 of the Texas Family Code.
Often, more than one ground for divorce may apply in any given case. Not all need to be pled in a petition for divorce, however, they can be difficult to prove. Any ground other than insupportability is a “fault-based” ground, meaning that one partner is pointing the finger at the other and blaming them for the breakdown of the marriage. This can prompt defensiveness and hostility in a divorce proceeding, so it is often best simply to plead insupportability, as one spouse’s testimony is enough to prove up the grounds and it keeps things as amicable as possible. You can always amend your petition during the divorce if your claim can be supported.
Filing Process
The process generally involves:
- Filing a Petition: This document outlines your intent to divorce and the reasons for it.
- Serving Your Spouse: Your spouse must be officially notified of the divorce, which is usually accomplished by hiring a private process server. If your partner is agreeable, they may also waive service.
- Answer: Your spouse has the right to file a response to your petition, and from there, the divorce can either be contested or uncontested.
Property Division
One of the most significant aspects of any divorce is the division of assets and debts. Texas is a community property state, meaning that most property acquired during the marriage is presumed to be jointly owned and will be divided equally.
What Constitutes Community Property?
- Real estate acquired during the marriage
- Personal property acquired during the marriage
- Bank accounts opened or deposited into during the marriage
- Retirement funds accruing during the marriage
- Debts incurred during the marriage
Note that all of the above items must have been acquired during the marriage. There is a presumption that everything in a couple’s estate is community property, and it is the individuals’ job to rebut that presumption if they want to claim property as separate.
It’s essential to understand what qualifies as separate property, which is owned by one spouse and not subject to division. This typically includes property owned before the marriage, bought with proceeds from the sale of property owned before the marriage, or received as a gift or inheritance.
Child Custody and Support
For same-sex couples with children, custody arrangements can be particularly complex. If both partners are the child’s formal legal parents, they have equal rights regarding custody and support. Texas courts prioritize the best interests of the child when determining custody arrangements. It is important to remember that the Court determines what is in the best interest of a child based on a number of factors. Often what a parent believes is in the best interest of the child can differ from what the Judge believes.
Types of Conservatorship
- Joint Managing Conservatorship: Both parents share legal rights and physical possession, often with one parent designated as having the exclusive right to designate the child’s residence.
- Sole Managing Conservatorship: One parent has exclusive legal rights of the child. Oftentimes when a parent is named a Sole Managing Conservator, the other parent follows a possession schedule. It is presumed the parents should be named Joint Managing Conservators. Absent extreme facts like child abuse, substance abuse, family violence, parents will be named Joint Managing Conservators.
The Texas Family Code lays out who and what amount a parent shall pay in child support. Typically, the parent who is not designated as the parent who can designate the primary residence of the child pays child support. Child support is calculated based on an Obligor’s net resources. An Obligor is the person paying child support, and an Obligee is the person receiving child support. An Obligor is also likely going to be responsible for providing or paying for health and dental insurance for the child. For more information on child support, click here.
In Texas, the legal system doesn’t automatically assume that mothers are the primary caregivers, which opens the door for a more nuanced understanding of parenting roles within same-sex couples.
For two moms or two dads, for instance, the court will need to consider various factors beyond gender, such as who has been the primary caregiver, the emotional bonds formed with the children, and the ability to provide a stable environment. Courts can assess who has been most involved in daily parenting tasks and the overall well-being of the children, rather than defaulting to traditional stereotypes. This shift is crucial in ensuring that the best interests of the children are prioritized, reflecting the reality that both parents—regardless of gender—can equally fulfill the role of a primary caregiver. This approach helps recognize that parenting roles can be fluid and are not strictly defined by gender.
Conclusion
While same-sex divorce in Texas follows the same legal principles as opposite-sex divorce, there may be specific nuances that apply in each individual case. Whether it’s navigating asset division, child custody, or emotional hurdles, being informed can help you to make the best decisions for your future. If you find yourself facing this difficult process, consulting with an attorney experienced in LGBTQ+ family law can provide invaluable guidance and support.