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FAQs Regarding Same-Sex Couples and Divorce

In 2015, the United States Supreme Court made same-sex marriages legal in all 50 states. Prior to this ruling, same-sex marriage was not recognized in the state of Texas – and neither was same-sex divorce. While the same marital laws that apply to married heterosexual couples are now available to married same-sex couples, that does not mean getting a same-sex divorce in Texas is a walk in the park. Today, we compiled and responded to a list of frequently asked questions regarding same-sex couples and divorce to shed some light on the subject.

Are same-sex couples given the same marital property rights as heterosexual couples?

Yes. All assets and debts acquired from the date of the marriage until the date of the divorce are subject to division for both same-sex and heterosexual couples.

If you were legally married as a same-sex couple outside of Texas, can you still get divorced in Texas?

Same-sex couples can obtain a divorce in the county where at least one of them resides even if they were married outside of Texas. If you were married in another state prior to the Supreme Court ruling that legalized same-sex marriage, you can still get divorced in your home state. Same-sex couples have the right to marry and divorce in all 50 U.S. states. You just need to ensure you meet your state’s residency requirement before filing for divorce.

Can you share custody of your children after a divorce?

If you can work together with your ex-spouse to create a parenting plan, then you can share custody of your children. However, in a contested divorce, this might not be the case – especially for couples who did not adopt their spouse’s child. In this instance, if one spouse never legally adopted the other spouse’s child, it may prove difficult to obtain any parental rights, including custody and visitation as the non-biological parent. An experienced attorney can assist you with this process.

Do same-sex couples have the same rights as heterosexual couples when it comes to spousal support?

The court system will award spousal support if the receiving spouse has a financial need and the other spouse can make these payments. The court will refer to certain factors, such as the duration of the marriage before awarding spousal support. However, should the courts consider the duration of the marriage when determining spousal support for same-sex divorces as same-sex couples could not legally get married in many states until 2015? As such, it is difficult to determine what the court will decide. The court may choose to add the additional unmarried years to the years the couple was married before deciding spousal support.

If you were in a domestic partnership and are now married, will you need to dissolve your domestic partnership?

Domestic partnerships are treated similarly to marriages. While domestic partnerships are not recognized statewide in Texas, some counties, such as Travis county, do accept the filing of a domestic partnership agreement. You may be required to dissolve your domestic partnership as well as your marriage before finalizing your divorce. It would be best to secure the counsel of an experienced attorney to ensure you need to take both steps.

Reach out to our firm online or by calling (512) 768-9737 to schedule a time to discuss your same-sex divorce case.

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