Many Americans are divided on the issue of whether or not same-sex relationships should be allowed to get married. For a while, many states were also divided on whether or not to recognize same-sex marriages until the Supreme Court stepped in. This is essential since you have to first be married in order to get divorced.
The Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2071 (2015), 2015 U.S. LEXIS 4250 (June 26, 2015), held that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same sex may not be deprived of that right and that liberty…same-sex couples may exercise the fundamental right to marry.” Obergefell, 2015 LEXIS 4250, at *42-43.
After this Supreme Court decision, many courts and litigators started to scramble with figuring out how to treat same-sex divorces and if this ruling would be retroactively applied. Now that all sexes are legally created equally, property division, spousal maintenance, child custody, divorce, and the like are treated the same.
Children in Same-Sex Relationships
Children issues in a divorce are overwhelming for any couple. Same-sex custody litigation may be complicated if a same-sex couple had children and they cannot agree on visitation, conservatorship, support, or custody; each spouse will need to demonstrate that they are a legal parent to the child so that a court can make that determination (since the spouses can’t agree).
In Texas, parentage can be established by the child being born or legally adopted during the same-sex couple’s marriage. In some cases, the child does not share DNA with either parent since some couples use a surrogate to have a child or a sperm donation.* Therefore, same-sex couples have to adopt the child of their spouse, called a second-parent adoption, or they can both adopt the child that is born from a surrogate, for example.
*Courts are still not completely sure how to treat assisted reproductive technology (sperm donation, egg donation, and surrogacy) for all couples.
Once the adoption is final, this is called co-parent adoption. Co-parent adoption is when the child has two (legal) parents that are the same sex. “Texas courts have recognized that co-parent adoptions favor stability and finality in parent-child relationships.” See Berwick v. Wagner, 01-12-00872-CV (Tex.App.-Houston [1st Dist.] September 11, 2014) citing TEX. FAM. CODE § 153.001 and cases at footnote 5.
Is Obergefell Applied Retroactively?
Yes, the Obergefell decision should be applied retroactively so it’s like any restrictions that did not treat same-sex couples equally, never existed in the first place. This matters in the context of adoptions (birth certificates), parental presumption, spousal maintenance, and more.
Common-Law Marriage (Same-Sex Relationships)
Texas recognizes common-law marriage. §2.401 of the TEX. FAM. CODE, under Subchapter E, “Marriage without Formalities,” entitled “Proof of Informal Marriage,” states: (a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that: (1) a declaration of their marriage has been signed as provided by this subchapter; or (2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married. Common-law marriage is usually difficult to prove since there is no marriage license or other documentation. Thus, it becomes quite difficult to pinpoint the actual “start-date” of the marriage (this is true for both same-sex and heterosexual couples).
After Obergefell, the reference to “man and woman” has to be applied in a way that includes any same-sex couples as well. Therefore, common-law or informal marriage is now available to same-sex couples. This means that for same-sex couples who met the requirements for common law marriage before the Obergefell decision, their marriage could have existed in Texas long before the ruling.
In Texas, the length of a marriage is vital in divorce litigation to determine the amount or ordering of spousal support, how much community property the marital estate has, social security benefits, and more. Now, same-sex couples can divorce and may have to pay spousal support, child support, or divide assets with his/her spouse.