Same-Sex Divorce in Texas: Legal Rights, Challenges, and Recent Developments in LGBTQ+ Family Law

In Texas, the legal landscape surrounding same-sex divorce has undergone significant evolution, reflecting broader societal shifts in attitudes towards LGBTQ+ rights and recognition. Before the landmark Supreme Court decision in Obergefell v. Hodges in 2015, which legalized same-sex marriage nationwide, Texas had various legal restrictions that prevented same-sex couples from marrying and divorcing on equal footing with opposite-sex couples.

Pre-Obergefell, Texas had a constitutional amendment defining marriage as between one man and one woman, enacted in 2005. This amendment not only prohibited same-sex marriage but also affected divorce proceedings for same-sex couples who had married in states where it was legal. These couples often faced legal hurdles and uncertainties when seeking to dissolve their marriages in Texas.

However, following the Obergefell ruling, same-sex couples in Texas gained the legal right to marry and divorce on an equal basis with opposite-sex couples. This landmark decision affirmed the fundamental right to marriage for all individuals, regardless of sexual orientation, and extended that right to divorce, ensuring that same-sex couples have access to the same legal protections and procedures as their heterosexual counterparts.

The significance of same-sex couples having equal access to divorce proceedings cannot be overstated. Divorce is a deeply personal and often complex legal process, and denying same-sex couples the ability to divorce not only infringed upon their rights but also created practical and emotional burdens. The Obergefell decision not only granted same-sex couples the right to marry but also provided them with the legal means to dissolve their marriages if necessary, affording them the same dignity, respect, and legal protections as opposite-sex couples in the eyes of the law.

Grounds for Divorce

Texas operates under a no-fault divorce system, meaning couples can seek a divorce without proving fault or wrongdoing by either party. This applies equally to same-sex couples, allowing them to dissolve their marriage based on insupportability, which refers to discord or conflict that has destroyed the marriage relationship and makes reconciliation unlikely. 

Property Division:

Texas follows a community property system, where assets and debts acquired during the marriage are generally considered community property and subject to equal division upon divorce. This applies to same-sex couples as well, meaning that assets acquired during the marriage, regardless of the gender of the spouses, are typically divided equally between them. However, equitable distribution principles may apply when equal division is unjust or inequitable.

Child Custody and Support:

Child custody and support in same-sex divorce cases are determined based on the best interests of the child, with consideration given to factors such as the child’s relationship with each parent, their emotional and physical needs, and any history of caregiving. Same-sex couples who have adopted children together or have children through other means have the same rights and responsibilities as opposite-sex couples in divorce proceedings. Texas law recognizes the legal parentage of both spouses in same-sex marriages, allowing for the establishment of custody and support arrangements that prioritize the well-being of the child.

Spousal Support:

Spousal support, also known as alimony, may be awarded in same-sex divorce cases based on factors such as the duration of the marriage, each spouse’s earning capacity and financial needs, and any disparities in income or standard of living. Texas law does not automatically award spousal support in divorce cases but allows for its consideration based on the case’s specific circumstances. Same-sex spouses may seek spousal support if they meet the eligibility criteria and demonstrate a need for financial assistance.

Challenges in Same-Sex Divorce:

  1. Discrimination:

Same-sex couples may encounter discrimination or bias from legal professionals, court personnel, or even judges during the divorce process. Strategies for addressing discrimination include working with LGBTQ+-friendly attorneys and seeking support from LGBTQ+ advocacy organizations. Additionally, raising awareness about LGBTQ+ rights and challenging discriminatory practices can help promote fair treatment in the legal system.

  1. Unique Issues for LGBTQ+ Families:

LGBTQ+ families may face unique challenges in divorce cases, particularly related to pre-existing co-parenting agreements, second-parent adoptions, and navigating complex family dynamics. Issues such as legal parentage, visitation rights, and parental responsibilities may require careful consideration and legal expertise to resolve effectively. Working with attorneys who have experience with LGBTQ+ family law issues can help ensure that the rights and interests of all family members are protected.

  1. Financial Challenges:

Same-sex couples may face financial challenges in divorce proceedings, particularly if there are disparities in income or access to resources between the spouses. Economic disparities may be compounded by systemic inequalities, such as wage gaps or employment discrimination based on sexual orientation or gender identity. Seeking legal counsel and financial planning assistance can help same-sex spouses navigate the financial aspects of divorce and advocate for fair and equitable outcomes.

Recent Developments in LGBTQ+ Family Law:

  • The Respect for Marriage Act:

The Respect for Marriage Act is federal legislation that seeks to repeal the Defense of Marriage Act (DOMA), which previously denied federal recognition of same-sex marriages. While the Supreme Court’s decision in Obergefell v. Hodges in 2015 legalized same-sex marriage nationwide, the Respect for Marriage Act reinforces federal recognition of these marriages. It ensures that same-sex couples have access to federal benefits, including those related to divorce proceedings. In Texas, the Respect for Marriage Act helps protect the rights of same-sex couples seeking divorce by affirming the validity of their marriages under federal law.

  • Legislative Changes and Court Rulings:

Texas has seen various legislative changes and court rulings impacting LGBTQ+ family law in recent years. For example, in 2017, the Texas Supreme Court issued a ruling in Pidgeon v. Turner that allowed taxpayer-funded benefits for same-sex spouses of Houston city employees. This decision affirmed the rights of same-sex couples to access benefits on equal terms with opposite-sex couples. Additionally, ongoing advocacy efforts have led to the introduction of bills aimed at addressing issues such as parental rights, adoption, and discrimination based on sexual orientation and gender identity.

  • Ongoing Movements and Advocacy Efforts:

Advocacy efforts for LGBTQ+ equality and protection continue in Texas and nationwide. Organizations such as Equality Texas, Lambda Legal, and the American Civil Liberties Union (ACLU) work to advance LGBTQ+ rights through litigation, policy advocacy, and public education campaigns. Movements such as the Transgender Rights Movement and efforts to combat conversion therapy highlight the ongoing struggle for equality and dignity for LGBTQ+ individuals and families. These movements aim to address systemic barriers and promote inclusive policies that recognize and affirm the rights of all individuals, regardless of sexual orientation or gender identity.

Resources for Same-Sex Couples

1. Legal Resources

  • State Bar of Texas Lawyer Referral Service (with LGBTQ+ filter): Provides referrals to LGBTQ+-friendly attorneys who can assist with family law matters, including divorce and custody issues.
  • Texas Legal Aid LGBTQ+ Legal Project: Offers legal assistance and resources specifically tailored to the LGBTQ+ community, including information on family law, discrimination, and civil rights.
  • National Center for Lesbian Rights: Provides legal resources, advocacy, and support for LGBTQ+ individuals and families, including assistance with family law matters and litigation related to LGBTQ+ rights.

2. Support Groups and Organizations

  • PFLAG (Parents, Families, and Friends of Lesbians and Gays): Offers support, education, and advocacy for LGBTQ+ individuals, their families, and allies, including resources on family acceptance and navigating legal challenges.
  • Human Rights Campaign (HRC): Advocates for LGBTQ+ equality through policy initiatives, public education campaigns, and support for LGBTQ+-inclusive legislation at the state and federal levels.
  • Family Equality: Provides resources, community-building opportunities, and advocacy efforts to support LGBTQ+ parents and families, including legal information and referrals to LGBTQ+-friendly service providers.

3. Mental Health Resources

  • The Trevor Project: Offers crisis intervention and suicide prevention services for LGBTQ+ youth, including a 24/7 helpline, online chat, and resources on mental health and well-being.
  • National Alliance on Mental Illness (NAMI): Provides support, education, and advocacy for individuals and families affected by mental illness, including LGBTQ+ individuals seeking culturally competent mental health services and support.