How Does Same Sex Divorce Differ from Opposite Sex Divorce?

Couples involved in same sex divorce face the same legal issues as opposite sex couples. However, they may also face additional legal issues. The area of law for same sex couples has not existed as long as it is for opposite sex couples.

In 2015, the U.S Supreme Court ruled in the case of Obergefell v. Hodges that same sex marriage was legal in all states. The Court found that state laws banning same sex marriages were unconstitutional. However, it often takes years for the legal landscape to settle after new laws come into existence. As courts address the nuances and conflicts that arise, case precedents emerge. Such precedents become case law, further clarifying and serving as legal guidelines.

Issues Couples Face in Same Sex Divorce

Grounds for divorce, property division, spousal support, child custody and child support are issues all couples face during divorce. In addition, same sex couples may face the following legal issues.

  • Determining the actual date of marriage. The Supreme Court recognized the legal basis for same sex marriages on June 26, 2015. However, some couples co-habited prior to this date. Courts base spousal support on the number of years a couple has been married. Moreover, if a couple cohabited for 20 years prior to their marriage being recognized, is it fair to determine spousal support based on a lesser number of years? This question applies to dividing marital assets and spousal support.
  • Child possession. In some instances, the biological parent of a child in Texas has the right to sole custody. However, the legal lines can blur on this issue for same sex couples. For example, one woman may have acted as the surrogate mother while using the other woman’s eggs during fertilization.
  • Civil unions and domestic partnerships. Have you as a couple created a civil union or domestic partnership in another state before residing in Texas? If so, a Texas divorce does not officially end it. You must legally dissolve your union in the other state.

Do you need legal help?

If you are looking for legal guidance with dissolving a same sex marriage, we can help. We are glad to provide you with sound legal advice. Contact us online or call 972.752.3474.