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.  Each person’s rights will be impacted differently based on the facts and history of their marriage.

Rights Given to Same-Sex Couples by Obergefell
  • Same-sex couples have the right to obtain a civil marriage on the same terms and conditions as opposite-sex couples.
  • A state may not refuse to recognize a lawful same-sex marriage performed in another state.

What Obergefell Didn’t Do

The Obergefell decision was monumental for same-sex couples, but it was somewhat limited in what it addressed.  It gave same-sex couples two things: (1) the right to get married, and (2) the right to have a marriage recognized across state lines.  

The decision did not define the benefits and liabilities that would go along with the right to marry, including how property would be divided in a divorce.  It also did not address custody rights. If, for example, one spouse legally adopted a child ten years ago, Obergefell did little to address the custodial rights of the non-adopting spouse.

The decision creates even more questions in states like Texas that recognize common law marriage.  In Texas, a couple can be married if they agree to be married, live with each other in Texas, and represent to others in Texas that they are married.  This raises the question of whether a same-sex couple can retroactively be married if they called one another husband and husband for the last twenty years, 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.”

Why Is There Still Uncertainty About the Impact of Obergefell?

Each state in the U.S. has its own laws pertaining to divorce and custody cases.  Because Obergefell only addressed the right to be married, each state will need to decide how to implement the decision through its own courts and laws.  Texas has not enacted any new laws in the wake of Obergefell, but some cases are slowly winding their way through our court system.  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).  It will likely take years before there is clarity in Texas about the rights and obligations in same-sex marriages.

Factors That May Impact Rights in a Same-Sex Divorce

The outcome of every divorce is always uncertain.  Each party will have different rights to their property and children depending on the facts of their marriage. Here are some factors that are unique to same-sex divorces:

  • Was there a legally-recognized marriage in another state?  The Obergefell decision mandates recognition of out-of-state marriages in Texas, so a Texas court should recognize these marriages.
  • When Did the Marriage Begin?  Since Texas is a community property state, all property acquired during marriage is community property.  The date of marriage is a critical inquiry in determining property rights and entitlement to spousal support.
  • Is There a “Common Law” Marriage?  There is still legal uncertainty surrounding this question, but if a couple meets the requirements of a common law marriage, they may have an argument that the marriage dates back many years.
  • How Were the Children of the Marriage Born or Adopted?  There are many avenues couples take to bring children into their marriage.  The legal rights of each spouse will be determined by several factors, including whether the child was legally adopted and what role each spouse has had in raising the child.

How Our Firm Can Help

At Noelke Maples St. Leger Bryant, LLP, we have skilled attorneys who will take the time to answer questions unique to each divorce.   Even if a person is not yet ready to start a divorce, having information about your legal rights can better inform decisions and next steps.  Contact us to schedule a confidential consultation: Contact NMSB.