Same Sex Divorce in Texas


Now that the Supreme Court has recognized the nation wide right for same-sex couples to marry, the next question that could potentially face same-sex couples is how to dissolve a marriage that is no longer functional.

The answer is simple – divorce!

There are no special rules to govern same-sex divorces. Once either spouse has made the decision to file for a divorce, the divorce process is the same for everyone. Once a divorce is filed there is a mandatory “cooling off” period that every divorcing couple in Texas must wait out. That “cooling off” period is sixty days. Once sixty days have passed, if a final agreement has been signed by the parties, then the divorce can be finalized through a prove-up hearing where the agreement is entered into the record of the Court and the Final Decree of Divorce signed off on by the judge.

The process sounds deceptively simple; however, many same-sex couples are not familiar with Texas community property laws and what these laws mean in the event of a divorce. Just like any couple, a same-sex divorce in Texas is granted from the date of marriage through the date of divorce. This applies regardless of where a couple was married and whether his or her marriage was even recognized by the State of Texas at the time the marriage ceremony was performed. Same-sex marriage is now recognized by the US Supreme Court and the Federal Court system and with that ruling comes recognition of same-sex divorce.

The easiest explanation of community property laws in Texas is this – everything from the date of marriage through the date of divorce is equally owned by both spouses. This means anything earned or purchased during the marriage both spouses have an equal claim to. For instance, regardless of what bank account money is deposited in and whose name is on the account, 100 percent of the funds placed in that bank account during marriage are then divisible on divorce. If a couple buys a house together, then any equity in the home is payable to both spouses on divorce.

Texas community property law states that the marriage estate is to be split equally between the spouses on divorce; however, there are mitigating circumstances that could see one spouse awarded a greater than 50 percent portion of the community. In addition to community property, any property owned prior to marriage or purchased under specific conditions during the marriage, is considered the separate property of the spouse.

Due to the legal complexities of dividing property between spouses at the time of divorce, consultation with a divorce attorney is a must. If you are facing divorce, contact us for a free consultation today!