A great deal of attention and celebration have been given to the equal marital rights afforded to same-sex couples.  What’s not brought into the spotlight as often is the less celebrated side of marriage—divorce. In this article we’ll explore the divorce process for LGBTQ couples in Texas, including any differences, challenges, and legal representation.

Divorce Process for LGBTQ couples in Texas? 

Because same-sex marriage is legally recognized in Texas, the divorce process is the same as in a different-sex divorce. Those steps vary slightly depending on whether you file a contested divorce, an divorcio no contestado, or divorce through la mediación, but the general process is as follows:

1. Meet the Texas residency requirements (6 months residency in Texas and 90 days in a single county prior to filing for divorce).
2. Complete and file your petition for divorce and any other forms required by your county with the district or county clerk (as appropriate).
3. Pay your county’s required filing fee.
4. Serve your spouse, or have your spouse waive service. (Your spouse will be expected to sign a Waiver of Service in an uncontested divorce so that you can bypass the need to pay for a process server).
5. Your spouse responds to the petition within 20 days plus a Monday (If your spouse fails to respond or sign the Waiver of Service and doesn’t file an answer, you can choose to pursue a no-answer default divorce, which allows the divorce to proceed without their participation.
6. The divorce case is presented to a judge in court or via a mediator following a 60-day cooling period from the date of filing.

How Long Does Same-Sex Divorce Take in Texas?

The time it will take to complete your same-sex divorce in Texas depends on the route you take. Uncontested divorces are traditionally much quicker than contested divorce cases. An uncontested divorce is typically completed in a little as 70 days, although it can take longer in certain counties. A contested divorce can take 6-12 months or even longer depending on the complexity of the case.

Due to the relative recency of legalized same-sex marriage in Texas, these cases may take longer than traditional divorce cases if a judge or lawyer is unfamiliar with LGBTQ divorce. This is why it’s important to work with a family lawyer who’s experienced in same-sex divorce.

Can LGBTQ Couples Get an Online Divorce in Texas? 

Again, the same rights are afforded to same-sex couples as different-sex couples in Texas, so uncontested online divorce is available and a worthwhile consideration due to its convenience. LGBTQ couples going through a contested divorce are unable to do so online. Carrington Smyth, PLLC. Specializes in online divorce in Texas and can answer any questions.

Can You Get a Same-Sex Divorce in Texas if You Were Married in A Different State?

The federal Respect for Marriage Act requires all states to recognize same-sex marriages from other states. Therefore, you can get a divorce in Texas if you were married in another state as long as you or your spouse have lived in Texas for six months and in the county where you’re filing for the last 90 days.

Dissolving Common Law LGBTQ Marriages in Texas

Common law marriages can be trickier to dissolve due to the difficulty of defining the date of marriage. Partners can and do disagree on when a common law marriage began. When this is the case, evidence will need to be provided to establish when the common law marriage began, and that can be challenging.

Also important to note is that common law marriages expire. This goes for same-sex and different-sex couples. In Texas, there is a two year statute of limitations on common law marriages. So, if you and your partner break up and don’t live together for two or more years, the common law marriage is potentially void.

Which is the Best Type of Divorce for LGBTQ Couples?

The best type of divorce for you is entirely dependent on your specific situation. If you and your spouse can work cooperatively, an uncontested divorce could be your best route forward. If your relationship has degraded past the point of cooperation, a contested divorce may be advisable. This article on 5 Things to Consider when Considering Divorce in Texas discusses the different options available to you, as well as other important points to ponder if your contemplating divorce.

Division of Property in a LGBTQ Divorce

Just as with the divorce process, division of property in a same-sex divorce is the exact same as it is for heterosexual couples in Texas. All assets and debt acquired from your marriage date forward are considered community property and subject to equal division( regardless of who paid, or whose name is on the paperwork).

The only exceptions to this rule are inheritance, gifts, or personal injury settlements.

Obtaining Spousal Support/Alimony in Same-Sex Divorce Cases

Qualifying for alimony in Texas is particularly difficult regardless of whether you’re in a same-sex or different-sex divorce. In order to qualify for court-ordered spousal support, Texas law states that one spouse must prove they lack sufficient finances to meet their minimum reasonable needs.

The individual filing for spousal support must also prove:

• The marriage lasted a minimum of 10 years, and they cannot produce enough income to provide for their minimum reasonable needs.
• They are caring for a disabled child of the marriage and those responsibilities do not allow them to earn enough income to provide for minimum reasonable needs.
• They cannot earn sufficient income due to a disability that occurred during the marriage.
• Their spouse has been convicted or received deferred adjudication for committing an act of family violence within two years before the date of filing for divorce or while the case is pending.

Even when these conditions are met, there’s no guarantee that a judge will grant you spousal support. It is more likely to receive spousal support through a private contract created as part of the divorce settlement. Your family lawyer can help you understand and eventually craft a private contract to receive spousal support.

Custody Cases and Parental Rights for LGBTQ Couples in Texas

Custody cases can be more complex and present more challenges for same-sex couples divorcing in Texas. Here are a few reasons why:

• Interpretation of Laws: It can be challenging to apply child custody laws to LGBTQ couples that were originally written for heterosexual couples.
• Unfamiliarity: Custody cases involving same-sex parents are less common at this point in Texas. This can result in less familiarity and clarity among judges, lawyers, and the court system in general.
• Establishing Parental Rights: Establishing parental rights can be more difficult for LGBTQ people to begin with. This can create difficulties during a custody battle in a divorce. Especially, if both parties raised a child who was born to one parent prior to the marriage.
• Adoption: Many LGBTQ parents adopt. But in certain cases, only one of the spouses legally adopted the child, which can make the case that much more challenging for the parent who didn’t.

Due to the complex nature of factors that are unique to same-sex parents, it’s highly recommended to speak with an experienced family lawyer if you’re entering into a divorce and a child is involved.

Parenting Orders and SAPCRs for LGBTQ Couples

When unmarried couples separate and need to formalize child custody, child support, and medical orders, a Suit Affecting a Parent-Child Relationship (SAPCR) is required. A SAPCR can also be used to modify existing orders due to a change in circumstance.

SAPCRs come in both contested and uncontested varieties with different steps and requirements for each. For a complete breakdown of SAPCRs, including child support requirements, who can file for them, and how they compare to paternity cases, read this article on SAPCRs and Modifying Child Custody, Child Support, or Medical Orders in Texas.

While LGBTQ couples are now afforded the same marital and divorce rights as heterosexual couples, certain differences and challenges remain when navigating a same-sex divorce. Contact Carrington Smyth, PLLC today with any additional questions on same-sex divorce in Texas or unique considerations for LGBTQ couples.