Same sex divorce is a relatively new concept in Texas. Until just a few years ago Texas failed to recognize same sex marriage at all. Consequently, there could not be a same sex divorce. But now the states must recognize same sex marriage. Is same sex divorce different from heterosexual divorce?
Same Sex Divorce and Community Property
Under the United States Supreme Court ruling on same sex marriage, community property in Texas remains the same as it would for any divorce. The Supreme Court ruled that laws against same sex marriage are void from the very beginning. That means community property accrued during a same sex marriage gets divided just as in any other divorce.
Additionally, community property was accrued by the parties beginning at the moment the spouses entered a marriage relationship. Thus, if a couple began a marriage relationship years before the Supreme Court ruling, community property began accruing at the moment the marriage began. Certainly, same sex marriages begun after the ruling are as legitimate as any other, so community property laws apply.
Same Sex Divorce and Child Custody & Support
Divorce courts in Texas have a duty to do what’s in the child’s best interest. The provisions in the Family Code for child support and custody make no distinction for same sex couples. Children in same sex divorces get the same protections as any other child during a divorce.
If the child was adopted during the marriage, then the court treats the parents as birth parents of the child. Thus, the normal decisions of possession schedule and primary custody come into play. If the child belonged to one spouse before the marriage, the court treats the other spouse as a step-parent. If the child was born during the marriage, the court must analyze who the biological parents are and make decisions from there.
Same Sex Divorce and the Courts
Same sex divorce represents a normal piece of our culture and society these days. There is no need to fear what might happen in court if the court finds out you are in a same sex marriage. The law handles same sex divorces as it would any divorce. The judges are used to good people on their worst behavior, bad people on good behavior. Divorce courts see “normal” people acting abnormally, and “abnormal” people acting perfectly normal.
The divorce court must, under law, give priority to what’s in the best interest of the child. Then the court focuses on dividing the marital estate in a fair way. There is no room for considering whether the spouses are the same sex or not.
Youngblood Law, PLLC is a Fort Worth, Texas family law firm focusing on helping people get on with their new life by getting done with their old life. This essay is intended for educational use only and is not a replacement for competent legal counsel. If you are facing a family law matter, we recommend obtaining competent legal counsel like Youngblood Law, PLLC. For more information contact us at 817-601-5345, find us on the web at youngblood-law.com.