Every divorce is uniquely challenging, but if you’re facing an LGBTQ divorce, there are additional complications that you may need to consider. One of the most important steps that anyone facing a divorce can take is consulting with an experienced divorce lawyer early in the process. Reach out to an experienced Round Rock LGBTQ divorce lawyer for the guidance you need in your case.
How an LGBTQ Divorce Can Differ from Other Divorces
LGBTQ divorces follow the exact same legal process that any other divorce does. The right to marry doesn’t vary according to sexuality or gender and neither does the right to divorce or the divorce process. Nevertheless, some LGBTQ couples face unique challenges related to child custody. Also, if the LGBTQ marriage is common law, there may be special considerations to keep in mind.
Recognition of Your Marriage
Same-sex marriages were legalized in Texas and in every other state in 2015 when the Supreme Court issued the Obergefell v. Hodges decision that required the issuance of marriage licenses to same-sex couples throughout the country.
Additionally, the Federal Respect for Marriage Act in 2022 afforded statutory protections for those in same-sex marriages without requiring all states to issue same-sex marriage licenses. However, this act does require all states to recognize same-sex marriages that are valid elsewhere in the country.
Texas has recently experienced some legal wrangling concerning the issuance of same-sex marriage licenses in the state, but the most recent development saw the state’s Supreme Court refuse an appeal regarding the case in question. This situation goes to show that even laws related to matters as primary as marriage can experience flux.
Your Common-Law Marriage
When it comes to common-law marriages, the legal requirements are no different for LGBTQ couples than they are for heterosexual couples. However, the date your common-law marriage was established will play a critical role in your divorce terms.
Because the State of Texas didn’t recognize same-sex marriage until 2015, many same-sex couples believe their common-law marriage can’t predate 2015, but this isn’t the case. The State of Texas recognizes the date you actually established yourselves as being in a common-law marriage. Call a Round Rock LGBTQ lawyer for help establishing your common-law marriage
Establishing a Common-Law Marriage
Not all states recognize common-law marriages, but Texas does. Establishing a common-law marriage has nothing to do with the number of years you and your partner live together, which is a common misconception. Instead, common-law marriage is established when all the following criteria apply:
Both parties agree between themselves that they are married.
The parties live together as a married couple.
The parties represent themselves to others as a married couple.
The amount of time you’ve been together will have no bearing on whether you are considered to be in a common-law marriage.
Couples can also sign and file a declaration of marriage as a means of registering an informal marriage – or common-law marriage.
Representing Yourselves as a Married Couple
In order to meet the requirement of representing yourselves as a married couple, actions like the following tend to suffice:
Telling people in the community that you’re married
Naming your partner as a beneficiary on life insurance policies and other financial tools
Sharing employment-based health insurance
Filing your taxes together as married filing jointly or married filing separately
Seeking state aid together as a married couple
Obtaining a home loan together as a married couple
The Terms of Your Divorce
Every divorcing couple – whether same-sex or heterosexual – must resolve the basic terms of divorce. Each of these terms can be challenging and require a considerable amount of negotiation to determine. However, LGBTQ divorces encounter complex challenges when determining child custody.
If you and your divorcing spouse are able to find common ground and resolve your divorce terms between yourselves, the judge in your case is very likely to accept them, and you won’t need the court’s intervention. However, if any terms remain a sticking point after you’ve exhausted your capacity to negotiate, including mediation, heading to court may be your only option.
Texas courts decide divorce terms in accordance with a wide range of relevant factors. Most divorcing couples would prefer not to hand over their decision-making authority during divorce, which tends to be highly motivating during negotiations. However, when divorce terms become very challenging, hotly contested, or both, the court’s intervention is sometimes required.
Child Custody Arrangements
When a married heterosexual couple has a baby in Texas, both parents are presumed to be the child’s legal parents. However, this presumption is not applied when a same-sex couple has a child in Texas. If one of the spouses is the mother who gives birth to the child, she is afforded full and automatic parental rights, but paternity must be established for the child’s other legal parent.
Adoption
Because the other spouse isn’t the child’s biological parent when the couple is same-sex, he or she must establish parental rights through either adoption or the granting of conservatorship rights. Failure to do so can leave the spouse who is not the child’s legal parent with very few rights.
This requirement is true whether the spouse in question is married to the birth mother or to the adoptive parent – if the adoptive parent adopted prior to the couple marrying. In Texas, you needn’t be married to adopt a child, but if you are, both spouses must adopt the child together.
When Only One Parent Is Recognized as the Legal Parent
If you are facing a same-sex divorce in Texas and your spouse is your child’s only legally recognized parent, seeking the skilled legal guidance of a practiced LGBTQ attorney early on is paramount. Texas courts can be unpredictable regarding child custody arrangements and LGBTQ divorce, which makes it wise to proceed with caution and with the guidance of a Round Rock divorce lawyer.
Legal Custody and Physical Custody
Texas considers child custody arrangements in terms of both legal and physical custody. Legal custody sets the stage for decision-making authority in relation to primary parenting concerns like the following:
Your children’s healthcare
Your children’s education
Your children’s religious instruction
Your children’s participation in extracurriculars
Divorced parents can share this responsibility, divide it between themselves, or assign one parent sole legal custody.
Physical custody establishes the parenting time schedule. One parent may take on the primary custodial role, or the parents can share overnights with the children more equally.
Protecting your rights to both legal and physical custody is far too important to leave solely to the court’s discretion.
Child Support
The State of Texas requires both parents to continue providing for their children financially upon divorce, and it implements child support payments to get the job done. Child support is calculated to help balance this financial responsibility between both parents according to their ability to pay.
When one spouse isn’t recognized as a legal parent, it can negate his or her responsibility to pay child support – as it diminishes or negates the right to visitation altogether. In other words, the importance of establishing both spouses as your shared children’s legal parents cannot be overstated.
Texas takes many factors into consideration when it makes child support determinations. Generally, the parent who is the higher earner usually has the child support obligation, even when parenting time is divided evenly.
The Division of Marital Property
When it comes to the division of marital property, LGBTQ divorces are the same as any other divorce. In Texas, the assets acquired by either spouse or by both spouses during the marriage are – with very few exceptions – considered marital. Marital assets must be divided in a manner that is considered just and right. Ultimately, this means fairly in relation to several factors:
The duration of the marriage
The size of each spouse’s separate estate
Each spouse’s contributions to the household, including homemaking and childrearing
Whether either spouse engaged in fraud on the marital estate or in the artificial depletion of marital assets
Whether fault played a role in the dissolution of the marriage
The tax considerations of a proposed division
Separate property refers to assets that were owned by either spouse prior to marriage and that were kept separate over the course of the marriage. A range of events and practices can blur the separate nature of a property, making the fair division of marital assets more challenging.
Alimony
Alimony is also called spousal maintenance or spousal support, and it only plays a role in select divorces. When divorce leaves one spouse unable to provide for his or her own reasonable needs while the other has the financial resources to help, alimony can be awarded. However, the spouse seeking alimony must prove financial need.
The longer the marriage, the more likely alimony is to be awarded based on factors like the following:
The financial stability the couple was able to achieve during the marriage
The standard of living the couple achieved during the marriage
The length of the marriage
The degree to which each spouse contributed to the marriage, which includes providing childcare and maintaining the home
The amount of time the spouse seeking alimony needs to gain greater financial independence through further education or job training
Each spouse’s overall level of education and earning potential
FAQ about LGBTQ Divorce
If you have concerns regarding your LGBTQ divorce, the answers to the following frequently asked questions may help.
Will My LGBTQ Divorce Be More Complicated than Other Divorces?
Every divorce is emotionally challenging and legally complex, but some are more so than others. While the fact that your divorce is LGBTQ doesn’t necessarily mean that you will face specific complicating factors, problems may arise, especially in relation to child custody if you and your divorcing spouse don’t share legal custody.
If you have concerns about the divorce terms of your LGBTQ divorce, a seasoned Round Rock LGBTQ divorce lawyer is standing by to help.
We’ve Been in a Common-Law Marriage for Many Years. Will Texas Recognize the Length of Our Marriage?
While Texas didn’t allow same-sex marriages until 2015, the state does recognize same-sex common-law marriages that were established prior to that year. However, establishing your common-law marriage can be challenging in and of itself. Legal representation is advised.
Is There a Common-Law Divorce for Same-Sex Couples?
If you are in a common-law marriage, you’ll need a divorce to dissolve the contractual obligations established in the union. These obligations are the same for same-sex couples as they are for anyone else. While there are common-law marriages in Texas, there is no common-law divorce. If you are married in Texas, the only way to alter your status is via divorce.
I’m Not Our Child’s Legal Parent. What Should I Do?
If you are not one of your child’s legal parents, it’s time to consult with a knowledgeable Round Rock LGBTQ attorney who has a wide range of experience successfully handling complicated child custody concerns like yours. The sooner you seek legal guidance, the better protected your parental rights will be.
Make the Call to an Experienced Round Rock LGBTQ Divorce Attorney Today
Brett Pritchard at The Law Office of Brett H. Pritchard – proudly serving Round Rock, Texas – is a practiced LGBTQ attorney who is well positioned and well prepared to help guide your case toward an optimal outcome. Learn more by contacting us online or calling us at (254) 781-4222 and scheduling your FREE consultation today.