The U.S. Supreme Court legalized same-sex marriage in 2015 with its Obergefell v. Hodges decision. The court gave long-awaited equality to all couples wishing to marry, regardless of where they lived in the United States. In the wake of this decision, however, there remains a lot of uncertainty in states like Texas about property and child custody rights during divorce because the Family Code speaks in terms of “husband and wife” and “mother and father”. Despite Obergefell, the Texas legislature has not amended the Family Code to address same-sex marriage. There is, therefore, some uncertainty about how provisions of the Family Code will apply to a same-sex marriage.


The Obergefell decision gave same-sex couples two things: (1) the right to get married, and (2) the right to have a marriage recognized across state lines. In Texas, all couples are now entitled to a marriage license. Further, if a couple was married in Massachusetts, Texas must now recognize that marriage. These rights are now clearly defined. The U.S. Supreme Court has also ruled that a state law prohibiting a same-sex spouse from being on adoption certificate is illegal. However, the courts are still trying to determine which other rights must be afforded to same-sex couples. The other “benefits and responsibilities” associated with marriage are still being decided by the courts. Pertinent to a divorce, this includes:

  • Custody rights to children.
  • Whether a common-law marriage should be recognized if the marriage pre-dates Obergefell.


Child custody laws are based on the premise that a “parent” of the child will always have a superior right to a child over a non-parent. The first issue to overcome in same-sex divorces is whether one or both spouses are “parents” entitled to rights to the children.

Texas has not enacted any new laws regarding child custody since the Supreme Court’s decision in Obergefell. Texas law has historically operated on the (unwritten) assumption that one parent will be female and the other parent will be male. This assumption fails to account for the ways in which same-sex spouses start and raise their families. Under Texas law, there is a presumption that any child born during the marriage is the child of the “husband.” The heart of the question for same-sex couples is whether this presumption should apply to all spouses, regardless of gender. One court in Texas has already said Obergefell does not create any legal rights for a spouse who is not the biological parent of a child. See Beaumont Court of Appeals decision, In re A.E., No. 09-16-00019-CV (2017). However, this issue of far from settled law, and it will likely take years before there is clarity in Texas.

A same-sex spouse without a biological relationship to a child may have rights in other ways. A person who is an adoptive parent of a child will have rights to the child. Texas law also permits a person who has actual possession, care and control of a child for six months to file a suit for custody by a certain deadline. The reasoning is that a person who lives with and helps raise a child for an extended period has an interest in continuing that relationship with the child.

Whether both spouses have rights to the children after a divorce is an extremely complicated and fact-intensive question. The advice of an experienced family law attorney is essential in these situations.


Texas and a handful of other states recognize common-law marriage. Two persons may have a common-law marriage if they (1) agree to be married and, after that agreement, (2) live in Texas as a married couple, and (3) hold themselves out to others in Texas as a married couple. This raises the question of whether a same-sex couple can retroactively be married during the time before marriage between them was recognized in Texas. We have some guidance on this issue. In Ranolls v. Dewling, Judge Marcia Crone of the Federal Eastern District Court of Texas explicitly found that “…Obergefell applies retroactively.” However, other courts in Texas have not yet definitively answered this question.

The date of marriage is a very important determination in every divorce. Beginning on the date of marriage, all property acquired by either spouse is presumed to be community property. The length of the marriage can also impact the right to spousal support. If a same-sex couple lived together and referred to one another as spouses but then later entered a marriage after Obergefell, which date is the date of marriage? These are questions that remain unsettled in Texas Law.


Because of the uncertainty of law, choosing a lawyer to handle a same-sex divorce is an important decision. This type of case will likely involve making novel legal arguments and the necessity of detailed legal research. Our lawyers at NMSB are equipped to handle these cases through our experience and team-based approach to representing our clients.

Practice Areas
Litigated Divorce
Collaborative Divorce
Mediated Divorce
High-Value Estates
Parenting Plans
Special Needs Children
Premarital Agreements
Postmarital Agreements
Same Sex Divorce in Texas