Until recently, the legal definition of ‘marriage’ was the union between one man and one woman. In 2015, the Court’s decision in Obergefell v. Hodges 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). This legal distinction is essential because, in order to get divorced, you must first be married. After this Supreme Court decision, many courts and litigators scrambled to determine how to treat same-sex divorces and if this ruling would be retroactively applied. Now that all marriages are recognized as legally equal, matters of property division, spousal support, child support, divorce, and the like are treated just as they would in any other marriage. There are, however, several unique characteristics that may complicate family law matters for same-sex couples.
Children in Same-Sex Relationships
Children’s issues in a divorce are overwhelming for any couple. Same-sex custody litigation may be complicated if a couple cannot agree on visitation, conservatorship, support, or custody. In these instances, 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, and in other cases, children only share DNA with one parent (as many couples use a surrogate or a sperm donation). Therefore, same-sex couples often adopt their spouse’s child (called a ‘second-parent adoption’), or they both adopt the child.
Courts are still not in agreement on how to treat assisted reproductive technology (sperm donation, egg donation, and surrogacy) for all couples.
The Obergefell Decision Is Retroactively Applied
The Obergefell decision is applied retroactively. Legally, it is as if restrictions against same-sex marriage never existed in the first place. This matters in the context of adoptions (birth certificates), parental presumption, spousal maintenance, etc.
Common-law Marriage (Same-sex Couples)
According to the Texas Family Code, if someone wishes to prove a common-law marriage, either “a declaration of their marriage has been signed” or the couple “agreed to be married and after the agreement they lived together in this state as [spouses] 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 challenging to pinpoint the actual “start-date” of the marriage. These difficulties exist for both same-sex and heterosexual couples.
After Obergefell, references in family law to “man and woman” is applied in a way that includes any same-sex couples as well. Therefore, common-law and informal marriages are now available to same-sex couples. For same-sex couples who met the requirements for common-law marriage before the Obergefell decision, their marriage may have existed in Texas long before the ruling. Now, same-sex couples can divorce and may be eligible for spousal support, child support, or other assets from their spouse.