Everyone talks about same-sex marriage now that it is legal in all of the United States, but what about  divorce.  Is a same-sex couple divorce different from a straight couple divorce? In short, it depends. Here are a couple of scenarios that will help distinguish a same-sex couple divorce from a straight couple divorce:

 

Scenario 1

Couple have been together for 15 years. They purchased a house together 10 years ago. They bought cars, shared bank accounts, shared credit cards, etc. Now they seek to separate/divorce.

Straight couple

Modify the above to say that they got married 10 years ago and purchased the house together as husband and wife. Then, everything is presumed to be community property which can be divided upon divorce.

Same-sex couple

Modify the above to say that they got married on July 26, 2015 (the first day they could in Texas) and now the only community property presumptions are what was purchased after July 26, 2015. The house was purchased prior to that. If purchased in both names, then they each have a separate property interest in the property that the Court cannot divide.

Perhaps there is a case to make for them to be common law married prior to July 26, 2015, though it is more difficult to prove common law marriages in same-sex couples because some of the factors like filing a joint tax return were not allowable. If a common law marriage applies then you can go back to the date of the alleged common law marriage and then all property from that date forward is community property.

Scenario 2

Couple has child together. Both parents are listed on the birth certificate. Couple separates a couple of years down the road. Are both people the parents of the child?

Straight couple

There are provisions in the Texas Family Code for establishing paternity of a child. Some of these involve DNA testing, filing an Acknowledgement of Paternity, adoption of a child, being married to the mother of the child at the time the child was born (and in some circumstances, after the child was born they could be married and still be the presumed father).

Same-sex couple

Creative use of the family code may get you acknowledged as a presumed parent, but there are no guarantees. The only guarantee that a non-biological parent has is to do a co-parent adoption or file a parentage action when the parties are still amicable. Establishing parentage, either through adoption or a parentage action, early on prevents the other party from coming back and saying that the non-biological parent is not a parent to the child.

Side note –  nowhere did I write that being on the birth certificate made you a parent because it is not part of the Texas Family Code. As crazy as it may sound being on the birth certificate does not, in the eyes of the Court, make you a parent.

Closing

In closing, seek out an attorney who understands that same-sex couple divorces are different from heterosexual couple divorces. They require creative use of the Texas Family Code in some situations that some attorneys may not seek.


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