Prior to the Obergefell decision in 2015, which made it legal for LGBTQ+ couples to marry in any state, there were only a handful of attorneys in Harris County, Texas that handled LGBTQ+ matters. These ranged from step-parent adoptions to suits to establish parental rights for the non-biological parent to suits to divide property even though divorce suits were not permitted in Harris County, Texas. Since 2015 there has not only been an increase in LGBTQ+ couples marrying, but also divorcing. Many family law attorneys feel a LGBTQ+ divorce is the same as a heterosexual divorce, however, there are many differences that sometimes occur. Here are a few questions to ask your attorney if you are going through a divorce.
While this is not determinative, but an attorney who has not handled a LGBTQ+ divorce and has not attended any training may be disadvantageous to you because they will not know the answers to some of the questions below or they may give you the wrong answers.
This one is very fact specific and will depend on your circumstances. If an attorney tells you that despite your 15 year relationship, your marriage only counts from the date of your formal marriage, you might want a second opinion. Many LGBTQ+ couples did not go to other states to get married, but yet considered themselves the equivalent of married. For example, they purchased houses, had bank accounts together, had life insurance for each other, etc.
If you are the non-biological parent and did not do a step-parent adoption this question is crucial. You need an attorney who understands how to use the family code to ensure that you have rights to your children. If not done properly then you may find yourself in the position of never seeing your children.
This relates to the question about common law marriage. If the attorney says that there was no common law marriage, then likely all the property owned prior to formal marriage is separate property. This means the Court cannot divide it. This would mean that if a house was purchased on one person’s name before formal marriage but both people were paying the mortgage and living there as a married couple would, the Court would award it to the one whose name it was purchased in. In an LGBTQ+ divorce, if the facts exist, it is key to try to establish a common law marriage existed in order to fairly divide property.
If you completed and back dated it to a date you considered yourselves married then that is the date that can be used. If you filled it out on June 26, 2015 and put that date, but you had a 10 year relationship prior to that, then maybe you need to be arguing that a common law marriage existed prior to the date on that declaration.
Last year I made the decision to focus my litigation practice on LGBTQ+ couples. I continue to stay up to date on the most recent decisions so that I can properly advise clients.