This article was written by Hance Law Group associate attorney Jonathan James.
With the possibility of same-sex marriage now a reality in Texas (and all other states), there’s an interesting debate that might come up as the possibility of same-sex divorce in Texas becomes more and more real for some couples.
The question is simple yet could be potentially, legally complicated: When does a same-sex marriage begin?
For a man and a woman who get married, the start date of the marriage is pretty simple to prove, and in a divorce case, acknowledging when the marriage began is an important initial step in the divorce proceedings and in determining which marital assets are community property.
In common-law marriage cases (known as “informal marriage” in Texas), which Larry Hance has written about in the blog before (here and here), disputes come up because one party is challenging the idea that the couple was married.
But in same-sex marriage cases, things aren’t so cut and dried. Texas law holds that a couple who isn’t legally married can’t be divorced, but doesn’t factor in the life events that might call a couple’s marital status into legal dispute down the road.
Let’s create a not-so-far-fetched example involving a same-sex couple in Texas. They decide to live together in 2005 and represent themselves to the world as a married couple. Because they can’t legally be married in Texas yet, their relationship can’t be considered a common-law marriage, but everything else about their living arrangement and how they present themselves to the world ticks the common-law marriage definition boxes.
Then, in 2015, the Obergefell v. Hodges ruling made same-sex marriages legal across the U.S. The couple in our example subsequently has a tumultuous year after that and decides to get separated. Let’s say, between 2005 and 2015, one member of the couple ran a successful small business that he sold for a significant sum of money prior to the marriage in Texas, while the other member was in more of a homemaking role.
Would the money earned prior to the Obergefell ruling be considered separate property belonging to the small business owner exclusively? Or would it, as it would in a common-law marriage ruling, be considered community property?
The first question to determine this would be whether or not the parties are married under the common-law marriage laws in Texas? And if so, when did that marriage begin? Did it begin in 2005; or, did it begin after the Obergefell ruling in 2015? My gut tells me that the couple’s prior history would factor in and they’d be ruled a couple since when they first started living as one. But my gut does not establish legal precedent in Texas—it’ll take an official ruling on a same-sex divorce case like this, which we don’t yet have, to create one.
Another example of this uncertain area would be when you have a same-sex couple that married in California in 2008 but now lives in Texas, would want to divorce. Since same-sex marriage was not recognized in Texas until after the Obergefell ruling, would a Texas court consider the marriage to have begun (and community property to accrue) since 2008 or 2015?
As a lawyer who is interested in the evolution of family law, I’m fascinated to see how this will develop as precedent-setting cases come before Texas judges. But as a lawyer who wants everyone to be treated fairly, I also hope that there will be a precedent-setting ruling sooner, rather than later, giving same-sex couples the same considerations as heterosexual couples when it comes to divorce.