Many couples share the same dreams and hopes of starting a life together, regardless of their sexual orientation or gender identity. When a marriage is no longer healthy or sustainable, or when one person is the victim of abuse, LGBTQ+ divorce can become necessary. LGBTQ+ couples also face unique challenges when pursuing a divorce in Texas. Below we answer some of the most common questions LGBTQ+ couples have when divorcing.
- What are the Same-Sex Marriage and Divorce Laws in Texas?
In 2015, same-sex marriage became legal after the U.S. Supreme Court decided on the Obergerfell vs. Hodges case. The opinion required all states to issue marriage licenses to same-sex couples. The federal Respect for Marriage Act, passed in December 2022, created statutory protections for same-sex marriages.
The new law does not require every state to issue a same-sex marriage license, but it does require all states to recognize valid same-sex marriages that were validly performed in another state. As a result of these laws, the marriage application process and divorce process are the same for every couple in Texas, regardless of sexual orientation or gender identity.
- How Can an LGBTQ+ Divorce Attorney Help Me?
Although the marriage and divorce process is now the same for LGBTQ+ individuals as for heterosexual couples, LGBTQ+ couples can face unique hurdles and challenges. Changes to the law have been relatively recent. Some LGBTQ+ couples could only get married after the Supreme Court’s 2015 ruling in Obergerfell. There may be unique child custody matters involved, especially if one of the spouses never legally adopted one or more children. Working with an attorney with experience in LGBTQ+ divorces can help you navigate these unique issues.
- How Will Our Assets Be Divided When We Lived as Married Before We Were Legally Married?
Texas is considered a community property state. As a result, all property acquired by the spouses during their marriage will be divided between the spouses equally upon a divorce. The property division process for same-sex divorce is no different from dividing property between heterosexual spouses.
- Is Permanent Alimony Possible After a Same-Sex Divorce?
Either spouse can request spousal support in a same-sex divorce. Short-term spousal support is designed to continue until the spouse with fewer assets and income can receive the education and training to become self-sufficient. Permanent, long-term spousal support is a possibility, but it is rare.
The judge will consider the length of the marriage as one of the factors to determine how long to award spousal support. A same-sex couple may have been together longer than they have been legally married due to changes in the law. In this case, working with an experienced attorney who can aggressively advocate for you to receive spousal support is crucial.
- Will My Child Be Legally Considered a Child of the Marriage?
There are specific rules about who is considered a child’s legal parents that depend on the specific circumstances of the parents involved. The marital status of the couple, who is the child’s biological parents, and how the child was conceived can all factor into the decision. People, the biological parent, may not automatically make a person one of the child’s legal parents. Even for married LGBTQ+ couples, simply being married and having both parents’ names listed on a child’s birth certificate may not be enough to protect both parents’ legal rights.
Same-sex parents are more likely to be parenting adopted children, which can create additional challenges in child custody decisions. Establishing parental rights is the first hurdle in child custody matters. A judge will decide who should get custody of a child based on what the judge thinks is in the best interest. Working with a skilled attorney can help you advocate for child custody rights during divorce.
- What are the Residency Requirements for an LGBTQ+ Divorce in Texas?
Under Texas law, at least one spouse must reside in Texas for at least six months to be eligible to file for a divorce. You and your spouse must wait 60 days after the filing before your divorce can be finalized.
- When Will My Divorce Become Final in Texas?
You must wait 60 days after filing for divorce before your divorce can be finalized. If you and your spouse cannot agree on all of the issues in the divorce, your divorce will take longer. When both spouses agree on issues and pursue an uncontested divorce, the divorce takes a few months. Contested divorces can take over a year or longer.
- Will One Parent Be Required to Pay Child Support After a Same-Sexx Divorce?
Parents are required to support their children financially regardless of gender and sexual orientation. One parent can be ordered to pay child support after a divorce if the person is a biological or adopted parent. Generally, the parent with visitation rights will be ordered to make child support payments to the parent with whom the child or children live.
- How Do I File for an LGBTQ+ Divorce in Texas?
The divorce process is the same for LGBTQ+ couples as for heterosexual couples. One spouse must file a petition for divorce to begin the process. The specific steps will depend on whether the divorce is contested or uncontested.
- Do I Need an Attorney to File for Divorce?
While it is possible to represent yourself during an LGBTQ+ divorce, it is not advisable. The divorce process can be challenging and emotionally fraught. Additionally, LGBTQ+ divorces can present unique challenges. Working with an experienced attorney can help you prevent common problems, save money in the future, protect your interests, and navigate the process as smoothly as possible.
Attorney Vonda Covington has decades of experience advocating for and representing members of the LGBTQ+ community. When you work with her, you can rest assured she will strongly advocate for your rights and best interests. Contact Covington Law Firm, PLLC, to schedule a case evaluation and learn more about our legal services. We respond to all inquiries within 24 hours.
