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Grounds for Same-Sex Divorce
You must also show that you have a specific legal reason for divorce, recognized under Texas law. The legal reason for filing a divorce is called “grounds” for divorce. The grounds for divorce in Texas are:
- Insupportability,
- Cruelty,
- Adultery,
- Conviction of a felony,
- Abandonment for one year,
- Living apart for three years, and
- Confinement to a mental hospital.
Insupportability is essentially Texas’ no-fault divorce ground. If you state insupportability as your reason for the divorce, you do not have to place blame or fault on either party for the marriage’s end. Instead, you are simply alleging a breakdown in the marriage due to a conflict of personalities, with no possible reconciliation.
The remaining grounds for divorce place blame on one of the parties for the marriage’s demise. The spouse alleging one of these grounds must provide evidence to support this in court. The court may award a greater share of the marital estate to the spouse who is not at fault for the marriage’s end.
Uncontested v. Contested Divorce
Many people wonder how long the divorce process takes in Texas. Like a marriage, each divorce is unique, and the length of time it might take varies. One of the primary factors of whether the divorce will be short and easy or long and complicated is whether the divorce is uncontested or contested.
In an uncontested divorce, the spouses agree on the significant issues in the divorce, including the division of assets and child custody. The parties often resolve the divorce with a settlement agreement rather than a trial. Here, the parties avoid the stress of repeatedly going to court to resolve the case.
But if the reason for divorce includes abuse, lies, withholding information about assets or debt, or another intense conflict, some parties cannot resolve the case quickly. Sometimes the parties disagree on many of the major aspects of the divorce, including its cause. When parties cannot come to a mutual agreement, this is considered a contested divorce.
In a contested divorce, you might have to attend many court dates, sit for sworn depositions, and might even have to go to trial. In a trial, the judge hears evidence and decides the distribution of marital property, custody, and other outstanding issues. Fortunately, the parties can reach an agreement and settle the case at any point before the judge makes their final decision.
Division of Marital Assets
One of the potentially contentious issues is how to divide the marital assets. Texas is a community property state. This means that under Texas law, all property the spouses acquire during the marriage is marital property unless it is specifically classified as separate property. Courts generally divide community property equally between spouses.
Separate property is property that one of the spouses acquired before the marriage or a gift or inheritance one spouse received during the marriage. Separate property is generally not part of the marital estate and is not divided between spouses.
In a same-sex divorce, this could be different. Perhaps you and your spouse lived together but couldn’t get married before 2015. During that time, one or both of you acquired property for the benefit of your relationship. At the time of divorce, those items may be excluded from community property.
Speak with a Houston same sex-divorce lawyer to help you fight for your fair share of the marital property.
Unique Property Division Issues in Same-Sex Divorce
Some same-sex couples were together long before same-sex marriage became legally recognized nationwide in 2015. Because of this, disputes can sometimes arise regarding assets acquired before the legal marriage but during the relationship itself.
Determining whether certain property should be treated as separate or community property may require a detailed analysis of when the assets were acquired and how they were used during the relationship. An experienced same-sex divorce attorney can help protect your financial interests throughout this process.
Child Custody
In 2017, the U.S. Supreme Court also extended the benefits of marriage to same-sex spouses, such as the right to adopt. This means that adoption by same-sex couples is legal in Texas. Similarly, the child’s custody may be in dispute when a same-sex couple divorces.
In Texas, child custody is referred to as conservatorship. This includes the right to make significant decisions about the child’s life and physical possession of the child. The court can assign the right to make many major decisions about a child equally to both parents, or at least provide for meaningful consultation with the other parent during the decision-making process. This shared decision-making is called Joint Managing Conservatorship.
The court or the parties can also decide where the child will spend their time. Courts use a standard possession order that typically sets one party’s residence as the child’s primary residence, then divides each parent’s time with the child for the entire year. The parents can deviate from this if it’s in the child’s best interest. A family attorney can help you negotiate the plan that is in your child’s best interest.
Establishing Parental Rights in a Same-Sex Divorce
Child custody issues in a same-sex divorce can become more complex when questions arise regarding legal parentage. Before custody and visitation are determined, the court may first need to evaluate each party’s parental rights.
In Texas, parental rights in same-sex relationships are commonly established through:
- Adoption
- Second-parent adoption
- Assisted reproduction agreements
- Valid surrogacy arrangements
When a child is born during the marriage, parental rights may still require additional legal steps to avoid future disputes. Taking proactive measures to legally establish parentage can help protect your relationship with your child in the event of divorce.
Conservatorship and Parenting Time in Texas
In Texas, child custody is referred to as “conservatorship.” Courts focus on the best interests of the child when determining conservatorship and possession arrangements in a same-sex divorce.
Texas courts often favor Joint Managing Conservatorship, which allows both parents to participate in important decisions regarding the child’s upbringing, education, and healthcare unless circumstances make that arrangement inappropriate.
The court will also determine parenting time and possession schedules. While Texas courts frequently begin with a standard possession order, parents may negotiate customized arrangements that better serve their family’s needs and schedule.
Speak with a Same-Sex Divorce Lawyer in Houston Today
Many other issues could arise in a same-sex divorce. If you are in a same-sex marriage and want a divorce, you need an experienced attorney who knows the details of Texas divorce law and the particular issues that may arise in same-sex divorces. The Larson Law Office knows Texas family law and the nuances involved in a same-sex divorce. Contact us today with questions about your Houston area divorce.