Since the groundbreaking Obergefell v. Hodges decision in 2015, same-sex couples in Texas have enjoyed the legal recognition and stability of marriage. However, when faced with the difficult decision to dissolve this union, navigating the nuances of a Texas same-sex divorce can feel like traversing a legal labyrinth.
In this blog post, an experienced The Woodlands divorce lawyer will explain everything you need to know in order navigate this process efficiently and advocate for your rights.
Grounds for Dissolution: Choosing Your Path
Texas offers two primary avenues for dissolving a same-sex marriage: fault-based and no-fault divorce. Each option has its own advantages and considerations.
Fault-Based Divorce
As stipulated in Texas Family Code (TFC) § 6.001, a fault-based divorce can be pursued on the basis of specific transgressions by one spouse, including:
- Adultery: Engaging in sexual intercourse with someone outside the marriage
- Cruelty: Inflicting physical or mental hardship on the other spouse, rendering the marriage continuation unbearable
- Abandonment: Willful and uninterrupted separation for at least one year with the intent to end the marriage
- Living Separate and Apart: Maintaining separate residences and lives for three consecutive years with no reasonable prospect of reconciliation
Proving fault can be emotionally draining and requires concrete evidence, such as witness testimonies, financial records, or medical reports. The court has wide discretion in assessing the severity of the transgression and its impact on the marriage.
No-Fault Divorce
For those seeking a less contentious route, Texas offers no-fault divorce under TFC § 6.006. This option requires demonstrating an irretrievable breakdown of the marriage, evidenced by living separate and apart for at least three consecutive years without cohabitation or resumption of marital relations. This ground avoids the need to prove fault, potentially easing the emotional burden and simplifying the legal proceedings.
Residency Requirements: Establishing Jurisdiction
To file for divorce in Texas, at least one spouse must have established residency in the state for six months immediately preceding the filing (Texas Family Code Section 6.302). Additionally, the marriage itself must have been legally performed in Texas or recognized by Texas law if concluded elsewhere.
Property Division
Texas operates under a community property system outlined in TFC § 3.003. This means all property and debts acquired during the marriage by either spouse are presumed to be community property, subject to equal division upon divorce. Separate property, such as assets individually owned before marriage or inherited separately, remains the sole property of the owner spouse (TFC § 3.001).
However, exceptions can arise. Property acquired prior to the marriage but significantly improved during the marriage with community funds or labor might be subject to partial community property characterization. Gifts and inheritances received by one spouse during the marriage generally remain separate property unless commingled with community funds or used for joint purposes.
The court, guided by TFC § 7.001, determines a “just and right” division of the community property by considering various factors, including:
- Length of the marriage
- Contributions of each spouse to the acquisition of community property, both financial and non-financial
- Earning capacity of each spouse
- Needs of each spouse
This process can be complex, so you should consult with an experienced divorce attorney in The Woodlands, especially when dealing with intricate financial situations, businesses, or investments.
Child Custody and Visitation: Prioritizing the Child’s Well-Being
Child custody matters in Texas same-sex divorces are governed by the “best interests of the child”. This principle prioritizes the child’s physical and emotional well-being over the desires of the parents. When determining custody arrangements, the court considers:
- The child’s physical and emotional health, developmental needs, and stability
- The relationship of each parent to the child, including the quality of the bond and history of caregiving
- The stability of each parent’s home environment and ability to provide for the child’s needs
- Each parent’s ability to cooperate with the other parent in raising the child
- Any history of family violence or child abuse
Both biological and adoptive parents in Texas same-sex marriages have equal rights to seek custody or visitation. Custody arrangements can range from sole custody awarded to one parent to joint custody, where both parents share decision-making responsibilities for the child. Visitation schedules are also determined based on the child’s best interests and the parents’ capabilities.
Spousal Support: Navigating the Financial Landscape
In some cases, one spouse may be awarded spousal support, also known as alimony, upon divorce. The court bases this decision on several factors outlined in TFC § 8, including:
- The financial needs of the receiving spouse, considering their earning capacity, assets, and ability to become self-sufficient
- The ability of the paying spouse to provide support, considering their income, assets, and debts
- The length of the marriage
- The contributions of each spouse to the marriage, both financial and non-financial
- The age and health of each spouse
- The education and training of the receiving spouse
Spousal support can be temporary or permanent, and the amount and duration are determined by the court based on the specific circumstances of the case.
Schedule an Initial Appointment with an Experienced The Woodlands Divorce Lawyer!
While the legalities of same-sex divorce in Texas might seem daunting, understanding the relevant guidelines and procedures can empower you to make informed decisions and navigate the process effectively.
Seeking legal counsel from Bolton Law and prioritizing constructive communication can ensure a fair and efficient resolution for both parties involved. Contact us at 281-351-7897 today.
