The other day an attorney asked for referrals for an attorney to represent a party to a same sex divorce. In that request, one attorney said “is there a difference between a same-sex divorce and a regular divorce?” The short answer to that question is simply yes!
While I cannot possibly write about every possible difference that exists between same-sex couples divorcing and heterosexual couples divorcing below are a few instances that arise in same-sex couple divorces that do not typically become issues in heterosexual couple divorces:
- Determining the date of marriage. In heterosexual couples, unless the issue is about a common law marriage, the date is simple, it is the date of the formal marriage ceremony. For same-sex couples in Texas this becomes complicated. June 26, 2015 was the first date that same-sex couples could get legally married in Texas because the United States Supreme Court said all states had to recognize and allow same-sex couples to marry. So you might think, “what’s the big deal?” Well the deal is that many of these couples considered themselves married LONG before that, even if they did not get married in a different state. Many of these couples bought houses, cars, planned retirements together long before June 26, 2015. If we only consider the date of marriage then all of that planning does not get recognized and issues dividing property become much more complex.
- Children of the marriage. Depending on the Judge he/she may decide that being married when a child was born is enough, but not all Judges agree with that. If the couple did not do a step-parent adoption for the non-biological parent it complicates the case to try to ensure that the non-biological parent has rights to the children. Creative uses of the multiple sections of the Texas Family Code come into play to assist in this endeavor.
So while it is true that a same-sex divorce is still a divorce, if you do not have an attorney who is skilled and knowledgeable in same-sex couple issues, you may not be getting all that you are entitled to.