In 2015, same-sex marriage – and, by extension, same-sex divorce – became legal in all 50 states in the nation. As a result, the same laws that apply to heterosexual divorce apply to same-sex divorce, but this does not mean that those facing same-sex divorce do not experience unique circumstances.
Having a better understanding of what to expect is the surest way to protect your rights throughout the divorce process, and working closely with an experienced Round Rock divorce attorney from the start is always advised.
You should choose a law firm that specifically works with same-sex couples and appreciates the issues that can arise in Texas same-sex divorce cases.
We were married in another state. Can we divorce in Texas?
As long as you were legally married in another state, all 50 states recognize the legitimacy of your marriage. This means that you can get a divorce in Texas regardless of where you married, but just like everyone else, you will need to meet the state’s residency requirements. These include all the following:
Either you or your spouse must have lived in Texas for at least six months prior to filing for divorce.
Either you or your spouse must have lived in the county that you filed for at least 90 days prior.
If you meet the requirements in two different Texas counties, you can take your pick. Your skilled Round Rock divorce lawyer will help you determine the county that makes the most sense for you, given your unique situation.
The only other time constraint that applies to your divorce is that you will be required to wait out a 60-day cooling-off period between filing for divorce and having your case finalized. In truth, however, most divorcing couples require more than 60 days to hammer out terms that they are both willing to sign off on.
Will property division, in our case, be just like everyone else’s?
Yes, property division, in your case, will follow all the same rules that it does in a heterosexual divorce, but it will be unique to the specific circumstances of your case. Texas is known as a community property state, which means that everything the two of you acquired during your marriage belongs to both of you.
Upon divorce, these assets must be divided fairly between you.
The only exceptions when it comes to classifying assets that are accumulated during the marriage as marital include the following:
Gifts given to either spouse in their name alone, including gifts given by one spouse to the other
Inheritances bequeathed to either spouse in their name alone
The pain and suffering amount in a personal injury settlement or court award that was initiated during the marriage
The presumption is that your marital assets will be split between you evenly, but there are factors that can support a lopsided division. Texas also presumes that every asset a married couple owns is marital property, meaning the spouse claiming separate ownership of an asset must prove it belongs solely to them.
Separate property in Texas refers to assets you owned prior to your marriage and kept separate in terms of financing during your marriage. When marital and separate assets become commingled, it can be far more difficult to prove separate ownership.
It is also important to note that if the value of a separate asset increases during your marriage, that increase will almost certainly be treated as marital property.
One of the most challenging divorce terms is the division of marital property, and this is true whether you are facing a heterosexual or a same-sex divorce.
What about our child custody arrangements?
The matter of your child custody arrangements in a same-sex Texas divorce can be even more challenging than it would be in a heterosexual divorce. When a heterosexual couple marries and has a baby, they automatically become the legal parents of the child.
When a woman who is not married has a baby, however, she becomes the child’s legal mother, but the matter of the child’s paternity must be established through legal means, and same-sex couples can face similar complications.
Adoption
With same-sex couples, only one of you can be the biological parent of your shared children, which makes adoption the surest means of protecting the other spouse’s parental rights.
As the same-sex spouse of your children’s biological parent, you have the right to legally adopt them through a second-parent adoption, which is supported by your marriage. The same is also true if your spouse is the adoptive parent of your shared child.
Adoptive parents have all the same legal rights that biological parents have, which means you retain your parental rights even if you divorce.
It should be noted, however, that – if you and your spouse adopt your children while you are married – you are required to adopt them as a couple. In Texas, a married person cannot adopt a child on their own – married couples must adopt together.
Artificial Insemination
Artificial insemination further complicates the matter of child custody rights in a same-sex divorce. In Texas, a donor who contributes to an assisted reproduction method, such as artificial insemination, has no parental rights, which can make things more challenging for two married men.
When a woman becomes pregnant through artificial insemination, the child she has is her biological and legal child, and if she is married to a man, he becomes the child’s second legal parent – unless he denies paternity.
If she is married to a woman, however, the woman does not automatically become the child’s second legal parent. Instead, she must proceed with a second-parent adoption or parentage judgment to secure her parental status.
When a man in a same-sex marriage, on the other hand, donates his sperm for artificial insemination, he does not automatically become the legal parent of any children who are conceived. Instead, he and his spouse must adopt the children together.
Surrogacy Contract
In order to enter a legally binding surrogacy contract, the surrogate mother, the married couple – whether same-sex or heterosexual – and the donor, which may be the husband in a heterosexual couple or one of the men in a marriage between two men, must all enter a valid gestational agreement that waives the surrogate’s rights and the rights of the donor.
The gestational agreement confers parental rights to the married couple in question.
For a gestational agreement to meet all legal requirements, a wide range of factors must be carefully addressed.
Paternity
When a woman who is not married has a baby, the matter of paternity must be addressed, and the term is reserved for establishing who the child’s father is – or the child’s second legal parent.
If, however, a woman who is married to a woman has a child, the matter of establishing the other woman’s rights as a legal parent can only be accomplished through a parentage judgment from the court or through adoption.
Because neither man in a same-sex marriage has automatic parenting rights, they are generally required to adopt their children together. Things only get more complicated from here, which makes having the legal representation of a determined Round Rock divorce attorney backing you up the best course of action.
Physical and Legal Custody
Child custody in Texas is addressed in terms of both physical and legal custody, and once the matter of parental rights is established in a same-sex marriage, child custody proceeds in the same way it does in any other divorce.
Legal Custody
Legal custody determines how you and your ex will make primary parenting decisions after you are divorced. The kinds of decisions involved include all the following:
Where your children attend school, daycare, or both
The health care your children receive
The extracurricular activities and travel your children participate in
The religious education your children receive
You and your ex can make these decisions together, but one of you may have the authority to cast a tie-breaking vote in the event you are unable to reach a consensus. Another option is to divide the decisions between you by category.
Under some circumstances, one parent is awarded sole legal custody, meaning they make all important parenting decisions on their own.
Physical Custody
Physical custody establishes the parenting time schedule. In Texas, matters related to child custody are always determined in accordance with the children’s best interests.
Texas courts adhere to the philosophy that children are better off when they remain in close contact with both parents, meaning that, as long as there is no significant reason to rule otherwise, both parents are very likely to receive ample parenting time.
When it makes sense to assign one parent the primary custodial role, they can expect to spend more overnights with the children. They also have the right to determine where the children make their primary home, but they must do so within the mileage constraints set by the court.
How will the matter of child support be resolved?
If you and your divorcing spouse are both your children’s legal parents, the matter of child support will need to be addressed in your divorce case. Legal parentage is the determining factor when it comes to child support.
If one of you is your children’s biological parent and the other is their adoptive parent, has a parenting judgment, or is their parent through some other legal means, child support will factor in.
Both parents are required to continue supporting their children financially after a divorce, and the amount is calculated in accordance with the obligor’s ability to pay.
If one of you takes on the primary custodial role, the other is very likely to have the child support obligation. If your parenting time is split right down the middle, however, the higher-earning parent will almost certainly be responsible for making child support payments.
In most cases, child support is calculated according to the following formula:
For one child, the higher earner pays 20 percent of their net income.
For two children, the higher earner pays 25 percent of their net income.
For three children, the higher earner pays 30 percent of their net income.
For four children, the higher earner pays 35 percent of their net income.
For five children, the higher earner pays 40 percent of their net income.
For six or more children, the higher earner pays at least 40 percent of their net income.
Will I receive alimony?
The fact that you are facing a same-sex divorce will have no bearing on how the matter of alimony is resolved in your case. Only when a divorce leaves one spouse unable to meet their reasonable needs does alimony – or spousal maintenance – enter the picture in Texas.
When that is the case and when the ex has the financial means to help, alimony can be ordered.
Discuss Your Concerns with an Experienced Round Rock Divorce Lawyer Today
Every divorce is a complicated legal matter, but same-sex divorce comes with additional challenges that – because they generally relate to parental rights – can be especially difficult to navigate.
Brett Pritchard at The Law Office of Brett H. Pritchard – proudly serving Round Rock, Texas, for more than 20 years – is a focused divorce attorney who has an imposing track record for helping clients facing same-sex divorces obtain favorable terms that support their own and their children’s best interests.
We are here to help, so please don’t hesitate to reach out and contact us online or call us at 254-781-4222 to schedule a FREE consultation today!