Same sex couples in Texas face numerous challenges today. Texas is one of only thirteen states that ban same sex marriages. In addition, Texas does not recognize the marriages of same sex couples legally performed in another state. So couples who are legally married in another state have no legal status as a married couple. If a Texas couple legally married in another state splits up, they are stuck in limbo. They cannot get divorced in Texas and it is usually impractical to move back the state they were married because of residency requirements.

Even when same sex couples legally marry in another state, Texas treats them as two unrelated individuals. Same sex couples only have the civil legal remedies available to unrelated individuals or entities. These may include the partition of jointly owned real estate or other property, the establishment of trusts, joint ventures or partnerships and unjust enrichment claims. Generally most of these remedies are difficult to prove and not favored by the law. None of the options for a same sex couple are as fair and equitable as the types of relief available to married couples under the current law. For same sex couples, there is no property characterization, there is no economic relief, there is no reimbursement, there is no spousal support or alimony, and there is no fair and equitable division of the property accumulated by the same sex couple during their relationship.Under the current law, married couples can accumulate community property which can be divided if they divorce. Community property includes real estate, vehicles, bank accounts, brokerage accounts, retirement and employment benefits such as pensions, IRAs, 401k accounts, stock options, and profit-sharing, insurance policies, businesses, frequent flyer miles and personal property. Married couples have homestead rights. If they divorce, married couples have certain reimbursement rights, and, in certain circumstances, the Court can order one spouse to pay spousal maintenance or alimony.

The existence of a valid contract such as a cohabitation agreement or other written document establishing legal protection is the strongest method of protection for a same sex couple. The agreements made by same sex couples regarding their obligations during a cohabitation period are contracts that are enforceable under contract law if they are properly drafted and if supported by consideration.

When it comes to children, same sex couples continue to face challenges. A person seeking conservatorship of a child must have standing to bring suit; both parents of a child traditionally have standing. Generally there is a parental presumption so that a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child. The Family Code presumes that the standard possession schedule for a parent is in the best interest of the child. Either parent may be ordered to pay child support and to provide medical support for the child.

Since same sex marriages are not recognized in Texas, the parent-child relationship between both adults in a same sex couple and any child they choose to raise must be established by biological relationship or judicial decree. As mentioned above, a person seeking conservatorship of a child must have standing to bring suit. To establish standing, the non-parent partner must have had actual care, control, and possession of the child for at least 6 months ending not more than 90 days preceding the date of the filing of the petition. The Family Code does not provide any guidelines for possession of and access to a child by a non-parent partner other than the general best interest standard. Furthermore, a non-parent partner may not be ordered to pay child support and to provide medical support for the child. However, if both members of the same sex family become legal parents of a child through co-parent adoption, both parents have standing to bring a suit affecting the parent-child relationship to address conservatorship, possession and access, and child and medical support.

The four appeals pending at the U.S. Supreme Court focus on two questions: First, whether bans on same sex marriage are constitutional; and second, if they are, whether those states with bans may refuse to recognize out-of-state same sex marriages performed where they are legal. If the U.S. Supreme Court determines that bans on same sex marriage are unconstitutional, same sex couples will be able to marry and marriages of same sex couples legally performed in another state will be recognized. Same sex married couples will have the same rights and responsibilities as heterosexual married couples. They can accumulate community property which can be divided if they divorce. They will have homestead rights. If they divorce, same sex couples will have certain reimbursement rights, and, in certain circumstances, the Court can order one same sex spouse to pay spousal maintenance or alimony.

However, the impact on raising a child could be more complicated. When a child is born during a marriage, under the Texas Family Code there is a presumption that the husband is the father of the child. There is no provision creating a presumption that the wife is the mother of the child because if there is only one wife and there is a biological child, the wife would have given birth to the child. It’s unclear if same-sex couples would also be the presumed parents of the child if they were married during the birth of the child. Until this is resolved, both members of the married same sex family should consider co-parent adoption.

Today Texas is on the brink of history. If the U.S. Supreme Court determines that bans on same sex marriage are unconstitutional as many anticipate, many same sex couples will immediately get married. We believe that some same sex couples will seek premarital agreements before marrying. We also believe that same sex couples legally married in another state who have split up can finally file for divorce in Texas.

Jimmy Vaught
Vaught Law Firm, P.C.

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