Houston Same-Sex Divorce Lawyer

Ending a marriage is hard enough without wondering whether the law accounts for how your relationship actually began. Divorce follows the same Texas Family Code process for every married couple, but same-sex spouses often carry one extra question: if you and your spouse built a life together years before Texas would issue you a marriage license, does that time still count?

At Skillern Firm Divorce & Child Custody Lawyers, our Houston attorneys represent same-sex spouses through every stage of Houston divorce, including the property-division and marriage-timing questions that come up when a couple’s relationship began before Texas recognized their marriage. Call (713) 229-8855 or contact us online to talk through your situation.

What Makes a Same-Sex Divorce in Houston Different?

A same-sex divorce follows the same Texas Family Code process as any other divorce. The court, the filing requirements, and the general process are identical regardless of the spouses’ sex. There is no separate “LGBTQ divorce” track in Texas family law.

The one issue that comes up more often for same-sex couples involves marriage recognition history. Obergefell v. Hodges established that same-sex couples hold the same marriage rights as opposite-sex couples, based on the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Before that decision, many same-sex couples in Texas could not get a marriage license, even though some had already built a life together as spouses.

That gap between living together as spouses and getting a Texas license is where a same-sex divorce can differ in practice. Everything else about the divorce process works the same for every married couple.

How Does Texas Divide Property in a Same-Sex Divorce?

Texas divides the property of divorcing spouses, including same-sex spouses, in whatever way the court finds just and right, giving due regard to each spouse’s circumstances and any children of the marriage. Section 7.001 of the Texas Family Code sets this “just and right” standard, and it applies the same way no matter the spouses’ sex.

Texas is a community property state, and property generally falls into three categories depending on when and how it was acquired:

That third row is where the timing of a same-sex couple’s marriage becomes important, since it determines how far back the community-property clock starts running. For couples together before Texas would issue them a license, Texas law offers a way to establish an earlier start date.

When Does the Court Consider Our Marriage to Have Legally Begun?

You and your spouse may have agreed to be married before your license date, then lived together in Texas representing yourselves as a married couple. Texas law calls this an informal marriage, commonly known as common law marriage, and lets a court treat your marriage as having begun on that earlier date. 

Section 2.401 of the Texas Family Code allows a marriage to be proved this way. No license or ceremony is required, but the spouses must show:

• They agreed to be married
• They lived together in Texas representing to others that they were married

This route matters most for couples in that situation who built a life together as spouses before Texas would let them marry. This approach lets a court look at when the relationship actually began functioning as a marriage, not just when the license was signed. Obergefell’s equal-protection holding means Texas courts apply this route to same-sex couples on the same terms as opposite-sex couples, even though the statute’s original text names opposite-sex couples.

Waiting more than two years after separating to raise this argument creates a rebuttable presumption, meaning the court will assume no agreement to marry existed unless you present evidence otherwise.

Couples who think an earlier marriage date applies to their situation benefit from raising it promptly, since getting the marriage’s start date right can change what counts as community property versus separate property for years of the relationship.

How Does Joint Managing Conservatorship Work for Same-Sex Parents?

Texas law presumes that both parents, regardless of their sex or their spouse’s sex, should be appointed joint managing conservators of their children unless the court finds that arrangement would significantly impair the child’s physical health or emotional development. Section 153.131 of the Texas Family Code sets out this presumption.

Joint managing conservatorship, or JMC, is broader than a time-sharing schedule. It covers each parent’s rights, duties, and obligations regarding the child’s health, education, and welfare, and for same-sex parents, the same presumption applies exactly as it would for any other divorcing parents.

Parenting arrangements are a related but separate area from the core divorce issues. An attorney can walk through how JMC would likely apply to your parenting situation.