city

The Sherman office is under construction. We’re currently at

230 West Main Street, Denison Texas
Brooks and Radchenko Law Firm

Family Law

Updated:

June 24, 2022

WRITTEN BY:

LGBT Divorce In Texas - All You Need to Know

The choice to part ways with your partner is a major decision - one that no one ever plans to make at the beginning of a relationship. Gay and LGBTQ divorce in Texas can be complex and stressful and even more so when dealing with unique or non-traditional situations.

Whether ending a legal marriage or dissolving an informal or common-law marriage, LGBTQ couples must go through the divorce process. There is no “common law divorce” in Texas - couples that enjoyed the benefits of common law marriage must still go through the traditional divorce process.

At Brooks & Radchenko, our divorce lawyers in Texas understand behind every case we handle, is a real person who needs help. We provide compassionate legal representation for our clients while aggressively advocating for the best possible outcome.

Texas LGBTQ Law

LGBTQ is widely known to stand for lesbian, gay, bisexual, transgender, and queer or questioning adults. Thanks to marriage equality in all 50 states, all members of the LGBTQ community in Texas can enjoy the perks and benefits of marriage that same-sex couples enjoy - everything from tax benefits to insurance benefits. In line with marriage equality, when marriages end, members of the LGBTQ community must also complete the same process of divorce (whether the divorce was a formal union or an informal common-law divorce).

When going through a divorce, gay and LGBTQ couples may face unique challenges, especially when minor children are involved that have not been officially adopted by a non-biological parent. When a child is born to one parent during a same-sex relationship or marriage, custody outcomes can vary if the divorce is contested and parents cannot agree on a custody arrangement.

Does Texas Recognize Same-Sex Marriage?

The answer to “Can gay couples get married in Texas?” is yes - absolutely! Same-sex marriage is recognized in Texas and has been since Obergefell v. Hodges, the landmark 2015 U.S. Supreme Court case. This case determined that the fundamental right to marry is guaranteed to same-sex couples by two parts of the Fourteenth Amendment to the United States Constitution:

  • The Due Process Clause: Prohibits arbitrary deprivation of "life, liberty, or property" by the government. 
  • The Equal Protection Clause: Prohibits state governments from enacting criminal laws that discriminate without reason. 

Can I Get a Divorce In Texas?

Texas has residency rules for filing for divorce. Under Tex. Fam. Code § 6.301, to file for divorce in Texas, one spouse must have lived in Texas for at least the first 6 months, and you must have resided in the county where you file for the past 90 days. If you do not meet the residency requirements, it may be possible to file for divorce in another county or state.

Are LGBT Rights In Texas the Same as for Heterosexual Couples?

In Texas, same-sex marriage is legal and LGBTQ couples have the same rights to marry or divorce as opposite-sex married couples. Informal, common-law marriage is available to same-sex couples as well. For a common-law marriage to be recognized, both members must be 18 years or older, must not be related to each other by consanguinity (see Tex. Fam. Code § 6.201), and must be legally single (not married to anyone else).

How Long Will LGBT Divorce in Texas Take? 

Once filed, Texas has a mandatory 60-day waiting period for a divorce to be finalized. However, the time period is not solely determined by the parties' preparedness and agreeability. If your court has a full docket, your divorce process may be delayed. Most Texas divorces take between six to twelve months to be finalized. A divorce may be delayed if: 

  • The whereabouts of the other party are not known. 
  • The other party avoids being served or refuses to sign paperwork. 
  • The other party contests the divorce or files frivolous motions. 
  • The other party refuses to respond to discovery (requests for information). 
  • The other party asks for an extension of the time. 
  • The other party changes legal counsel. 

Whether intentional or unintentional, delays in proceedings can be extremely frustrating. Having experienced representation on your side can ensure your case moves along as efficiently as possible. 

Property and Assets Division 

Texas is a community property state, which means that income and assets acquired by either spouse during the marriage are shared by both spouses. In any divorce, the division of property is not always a clean split. Courts may order an unequal division in situations where there are "just and right" reasons, specifically “having due regard for the rights of each party and any children of the marriage”. ( Tex. Fam. Code Ann. § 7.001.) This verbiage can make property divorce strongly disputed as much in gay and lesbian divorce as same-sex divorce.

Child Custody 

lgbt divorce

Child custody may be a sole or custody arrangement. When parents divorce in Texas, they must provide an agreement on allocating responsibilities for raising the children.

Under Texas Family Code, child custody includes two elements:

  • Conservatorship: Called legal custody in other states, conservatorship refers to making decisions for the child with regards to education, medical care, and religion. 
  • Possession and Access: Called physical custody in other states, possession, and access encompasses which parents the children spend time with, how the time is split, and where they live. 

It is always better - whenever possible - when custody arrangements can be worked out based on the best interests of the children. 

Child Support 

In Texas, child support is based on a formula set - and the parent who does not have primary possession must pay child support to the parent with primary possession.

When the net monthly income is less than $7,500 a month, a judge will take that amount and multiply it by a percentage which is determined by the number of children the parent supports (i.e. 1 child = 20%, 2 children = 25%, 3 children = 30%, and so on). Support continues until the child turns 18 or graduates from high school, whichever is later. It may also be terminated if the child gets married or dies. 

Spousal Support

In Texas, “alimony” is called “maintenance” or “spousal maintenance.” This alimony or spousal support is not automatic in Texas - and is more difficult to acquire than in other states. Alimony can be determined contractually (via mutual agreement). 

  • The marriage lasted more than 10 years. 
  • The spouse must care for a child with a physical or mental disability.
  • The spouse is unable to find a job to earn sufficient income due to health issues or age. 

Spousal support cannot be more than $5,000 per month or more than 20% of the paying spouse’s gross income. It is always temporary, with one exception - disability. The court establishes some ways to enforce a maintenance order, such as income withholding - but these do not apply to contractual spousal. 

What If There Has Been Family Violence or I Feel Unsafe?

Domestic violence rose in the aftermath of the COVID-19 pandemic, in Texas and across the country. LGBTQ communities were not immune. 

Family violence, including verbal threats of violence, physical violence, and sexual assault, can make a difficult family situation ever more difficult. As we saw in the 2022 defamation trial between Johnny Depp and Amber Heard, allegations of violence can be extremely challenging (regardless of social or financial status).

If you are in a domestic violence situation, your priority must be to protect yourself and your children. If you are dealing with a violent or unpredictable individual, attempts at civil and amicable relations should not be attempted, and cohabiting during a divorce may not be an option.

Texas has laws in place to protect victims of family violence, including allowing a judge to waive the mandatory 60-day waiting period. Domestic violence can affect the outcome of a divorce in Texas, and your attorney can help you decide your best course of action, including filing for an at-fault divorce and getting a protective order. If you are facing domestic violence in an LGBTQ relationship, help is available. The National Domestic Violence Hotline can be reached 24/7 at 800-799-7233.

Is There Legal Separation In Texas?  

does texas recognize same sex marriage

Legal separation can be helpful in a few situations, like when there are religious belief issues with a divorce, or when a couple wishes to live separately while maintaining health insurance or other benefits. While most states offer legal separation as an alternative to divorce, Texas does not (along with five other states: Delaware, Florida, Georgia, Mississippi, and Pennsylvania). 

It is possible to get temporary orders to accomplish some of the goals of a legal separation in gay divorce. This is not mandatory but can be beneficial to protecting parties’ interests. Temporary orders can specify provisions for temporary: 

  • Alimony and child support. 
  • Conservatorship or custody of minor children.
  • Provision of medical insurance, homeowners/renters insurance, and health insurance premiums.
  • Payment of bills and financial obligations. 
  • Use of motor vehicles. 
  • Payment of attorneys’ fees. 

A mutual separation agreement prepared by a family lawyer can also meet the objective of specifying rights and duties while parties are living apart. It can outline requirements for visitation, property rights, and financial support.

Schedule a Consultation with a Texas LGBTQ Divorce Attorney

If you are preparing for a same-sex divorce or have questions about the gay marriage divorce process, you do not have to navigate this difficult chapter alone. A family law attorney in Texas can help you protect your rights as you make the tough but important decisions ahead. At Brooks & Radchenko, we will provide you with support, guidance, and advice while you navigate your separation. Contact us to speak with a lawyer about your situation.

Contact Us Today For a Free Consultation

Brooks & Radchenko attorneys are ready to help you with any difficult life situation.

Get a free consultation!

Related Posts

Close

This website is legal advertising material

It does not provide legal advice. The scenarios described in this website are intended to demonstrate legal principles involved with representation in the type of case described. Any current or former clients quoted or specifically identified in these materials have reviewed the firm on a third-party website or platform, such as Google, without compensation. Every legal case is different. Specific past results are not indicative of specific future results. Any information contained herein pertaining to experience or familiarity with particular courts or government agencies should not be construed as an ability or willingness to exert improper influence over the legal system. All services described in these materials and provided by Radchenko and
Brooks, LLC, and its attorneys, are only performed in compliance with all applicable laws and the Texas Rules of Professional Conduct.