Following the U.S. Supreme Court’s recent ruling that legalizes same-sex marriage in all fifty states, many same-sex couples have rushed to get a marriage license. But, as with heterosexual marriages, divorces among same-sex couples will undoubtedly follow. In fact, one week prior to the U.S. Court’s ruling declaring same-sex marriage constitutional, the Texas Supreme Court upheld a divorce granted in 2009 between a same-sex couple in Travis County. And at least two Texas couples filed for divorce within days after the Supreme Court’s ruling was announced.
But the new legal concept of same-sex marriage, along with the notion of same-sex divorce, will be the subject of numerous legal questions as courts try to navigate this new landscape. Many of the same concepts that apply to heterosexual couples will now also apply to same-sex couples. Two of the topics that will likely cause confusion include, division of community property and common-law marriage.
In a heterosexual marriage, one factor that a court considers in the division of marital property is the length of the marriage. So if a same-sex couple has been together for ten years, but only legally married for a matter of days, how does a court determine the division of property?
Heterosexual couples may be considered married without ever having had a legal ceremony if their relationship meets certain conditions under Texas law. One of the most important conditions is whether the parties have told other people that they are married. This factor may be difficult to establish in a same-sex marriage for two reasons: one, since there was previously no concept of a legal same-sex marriage, why would a couple identify themselves as married; and second, given the negative opinion of gay marriage in a large segment of society, same-sex partners may have been reluctant to publicize their opinion of themselves as married.
More issues will likely arise as same-sex marriages end in divorce, whether among those who have been together for some time and now get legally married, or among those who marry in the future. Given the current and future likelihood for confusion in sorting out these details, a consultation with an attorney familiar with the specific issues of same-sex marriage may be a good starting point, certainly in anticipation of a divorce, but possibly also when contemplating a same-sex marriage to better understand the rights that go along with the legal union.
Source: Houston Chronicle, “Same-sex divorce filings follow historic U.S. marriage ruling,” Carol Christian, July 1, 2015