Filing for Same-Sex Divorce in Texas? Everything You Need to Know About LGBT Divorces

Paper that says "petition to file for divorce"

From a legal perspective, same-sex marriage is not different from a traditional heterosexual marriage between a man and woman in Texas. The same can be said about same-sex divorce in Texas.

When two people want to get a divorce, their sexual orientation or gender do not matter. What matters is ending the marriage and reaching an agreement between the spouses.

While the process of divorce for LGBT couples is the same as for heterosexual couples, it is still important to consult with a Fort Hood divorce attorney if you are considering same-sex divorce in Texas.

What is the Same-Sex Divorce Process in Texas?

Long gone are the days when same-sex marriages were banned. A landmark ruling on June 26, 2015, favored same-sex marriage rights in the United States. In Obergefell v. Hodges, the Supreme Court required all judges across the country to recognize same-sex marriage.

As such, the divorce process is the same for LGBT and heterosexual couples under federal and state law in Texas. Nonetheless, same-sex divorce cases require some special considerations, which is why it is essential to contact a skilled attorney to help you handle your particular situation.

As with traditional heterosexual divorces in Texas, same-sex divorces can be either contested or uncontested. You can seek an uncontested divorce when you and your spouse agree on all issues regarding the dissolution of your marriage.

What Are the Requirements to File for Same-Sex Divorce in Texas?

Texas Family Code § 6.301 requires at least one spouse to reside in the state for at least six months to be eligible for file for divorce. In addition, you must live in the county where you intend to file a petition for divorce for the past 90 days or longer. The residency requirement applies to both same-sex and heterosexual divorces in Texas.

Aside from the residency requirement to file for divorce in Texas, you should be familiar with the mandatory waiting period in the state. Under Texas Family Code § 6.702, you and your spouse are required to wait 60 days after the filing before your divorce can be finalized.

However, your same-sex divorce may not be finalized on the 61st day after the filing unless you and your spouse agree on all the issues, including:

  • Child support

  • Division of property

  • Alimony (spousal maintenance)

  • Child custody

How to File for Same-Sex Divorce in Texas?

In order to initiate the divorce process in Texas, you must file the Original Petition for Divorce along with other documents in the county court. It is important to consult with a skilled attorney to help you prepare the necessary documentation for your same-sex divorce filing.

Necessary documents and forms to file for same-sex divorce in Texas vary from one case to another and depend on whether the spouses share children together, among other circumstances.

When filing for LGBT divorce in Texas, you need to determine if you want a fault or no-fault divorce. Insupportability is a “no-fault” ground for divorce in Texas. If you want to pursue a fault-based divorce, you can choose any of the following grounds:

  1. Adultery (if your spouse cheated on you);

  2. Cruelty (if your spouse is guilty of cruel treatment);

  3. Incarceration (if your spouse committed a felony offense and was sentenced to at least one year in prison);

  4. Substance abuse (if your spouse abused illegal drugs or alcohol);

  5. Abandonment (if your spouse abandoned you for at least one year);

  6. Separation (if you and your spouse have been living separately and apart in different residences for at least 3 years); and

  7. Confinement in a mental hospital (if your spouse was confined in a mental institution for three years and their insanity is permanent).

Consult with a divorce lawyer in Texas to determine if you should seek a fault or no-fault same-sex divorce.

How to Determine Child Custody in Texas Same-Sex Divorces?

If your same-sex marriage involves children, the court will determine child custody if one of you is a biological parent and/or one or both spouses adopted children during the marriage.

As a divorcing parent, you may be awarded sole or joint custody, known as sole or joint conservatorship in Texas. However, sole custody awards are very rare in Texas because state courts consider that it is in the child’s best interests to have continuing and frequent contact with both parents.

  1. Sole custody. The child lives with the parent who was awarded sole custody. That parent has the exclusive right to make all major decisions regarding the child’s education, healthcare, religion, etc.

  2. Joint custody. The child lives with one of the parents who share joint custody rights. The other parent, however, has the right to visitation or parenting time with his or her child. Both parents make important decisions about their children.

Will One Parent Be Required to Pay Child Support After a Same-Sex Divorce?

Yes, the parents must support their children financially regardless of their gender and sexual orientation. One parent can be ordered to pay child support after a divorce if the person is the biological or adoptive parent.

Typically, the parent who has visitation rights is the one ordered to make child support payments to the parent who lives with the children.

Is Spousal Maintenance Ordered After a Same-Sex Divorce in Texas?

Spousal maintenance, also known as spousal support or alimony, can be ordered upon request when the requesting spouse:

  • Has a disability that prevents him/her from earning a substantial amount of money to be self-supporting;

  • Cannot find gainful employment due to his/her age or health problems;

  • Cares for a child with special needs;

  • Has been a victim of domestic violence by their spouse; or

  • Has been married to their spouse for more than 10 years.

The amount of spousal maintenance is determined on a case-by-case basis.

Property Division in Same-Sex Divorces in Texas

Texas is a community property state, which requires all property acquired by the spouses during the marriage to be split between the spouses equally upon a divorce.

The property division process for same-sex divorce in Texas is not different from dividing property between heterosexual spouses.

Contact a Fort Hood Divorce Attorney to Discuss Your Texas Same-Sex Divorce

If you are a spouse in a same-sex marriage in Texas and are considering filing for divorce, do not hesitate to speak with our attorneys at The Law Office of Brett H. Pritchard. We are committed to helping you achieve a fair resolution and protect your rights regardless of your sexual orientation, gender, age, race, or national origin. Call 254-501-4040 to receive a free case evaluation.
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