As many people celebrated the decision almost one year ago today when the Supreme Court of the United States said same-sex couples could get legally married in any state they wanted, lawyers started thinking about the changes that are going to happen. Lawyers started to think about the gaps that exist. Lawyers, of course, thought about the increased revenue for same-sex divorces. Let’s talk about some of these complications.

1. Because marriage was not legal in Texas for same-sex couples, many couples bought houses together during their relationship. That property is each your separate property. If you get married now, the property that was purchased before marriage would still remain each your separate property. That means it cannot be divided through divorce proceedings as is done in the normal course of a divorce if the property is purchased during marriage. There are remedies for this, but you need to speak to a family law attorney to discuss the best way to handle these situations.

2. Common law marriage – is it possible to have a same-sex common law marriage that extends before June 26, 2015? The code states that the parties have to intend to be married, hold themselves out as husband and wife to the public, and have lived together since they intended to be married. Nowhere does the code say that you can refer to yourselves as husband and husband or wife and wife, yet many attorneys are making the argument that common law marriage exists for same-sex couples and goes back before June 26, 2015.

3. Children – before June 26, 2015 same-sex couples who wanted to have children had to go through many hoops to ensure rights for both parents. This may still be the case today, though that is still being tested. The Code provides some options for the non-biological parent to maintain standing to sue for rights, possession, conservatorship, and access to the children, but these are tested waters. Further, with the allowance of marriage for same-sex couples these couples may find that the options for step-parent adoptions may start to require that the couples get married. Many Judges will not allow a heterosexual couple to do a step-parent adoption if the parties are not married and same-sex couples may see that becoming the case for them in the future.

The decision in Obergefell has caused attorneys to look to the code and find creative ways to assist their clients and will continue to challenge attorneys and legislators they figure out how to make this fit into the Family Code.


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