Same-Sex Couples face different issues than other couples in Texas. Now that same-sex couples can marry, some people thought that the obstacles they faced would no longer exist, however, this just is not true.
Some obstacles have been resolved such as inheritance rights, filing taxes as a married couple, and being able to make decisions for your spouse in the event of an emergency. However, several issues have not been resolved specifically with regard to children of same-sex couples:
Children of Same-Sex Couples
- Second (or Step) Parent Adoption – Prior to marriage being legal for same-sex couples in order to protect the rights of the non-biological parent couples traveled to different, more liberal counties in order to do step-parent adoptions. This allowed the non-biological parent (or parent that did not initially adopt) to adopt the child much like a step parent adoption. Unfortunately it is still HIGHLY recommended that same-sex couples, married or not, still go through the process of a step-parent adoption.
- Appointment of Guardian for Minor Child – This designates who you want the court to appoint as guardian of your child(ren) in the event of your incapacitation. If you choose not to do the step-parent adoption, this is highly recommended so that in the event the biological parent (or the parent that initially adopted the child) passes away that parents intent for caring for the child is expressed.
- Co-Parenting Agreement – This document allows for same-sex couples to make decisions about the care, custody, visitation and support of their child(ren), in the event of a separation. Again, if you choose not to do the step-parent adoption, this is highly recommended to show the intent of caring for the child.
- Suit Affecting Parent-Child Relationship – In the event of a separation and where the parties cannot reach an agreement with respect to their child(ren) a suit can be filed in court to determine custody and support of the child.
Other issues that are cropping up as a result of the right to marry that was decided June 26, 2015 is whether same-sex couples can claim that they had a common law marriage prior to June 26, 2015. Many same-sex couples had spent years together prior to June 26, 2015. They bought homes together. They had children. They have retirement accounts that they built together. If they had been able to marry prior to June 26, 2015, would they have gotten married? If they would have then all of the property and retirement accounts would be part of the marital estate. This is not only important in the context of divorce, but also in relation to the passing of one spouse.
- Divorce – In Texas, community property is divided through divorce, however, separate property cannot be divided by the Court. Therefore, all of that property that was accumulated prior to the date the couple actually got married would be separate property unless a court were to find that a common law marriage existed or some other creative lawyering piecing together various portions of different laws. If a common law marriage existed or other creative lawyering, then any property and retirement accounts accumulated from the date of the common law marriage through the date of divorce would be subject to division by the Court.
- Inheritance – In Texas, a spouse is automatically entitled to certain property when their spouse passes away. For example, if you have no children, then all of your community property passes to your spouse if you do not have a will, however, one-half of your separate property would go to your spouse and the other half would go to your heirs at law. Again, this assumes that no will is in place. Determining the date of the marriage is critical for estate purposes, especially when a will has not been drafted. Though I would always recommend meeting with an estate planning lawyer and having at a minimum wills drafted, you can also file a Declaration of Informal Marriage with the County Clerk and date it back to when you consider yourselves married. This will help in dividing your estate in the event of your passing.
How does this affect you in mediation?
Having a mediator who is intimately familiar with the issues surrounding same-sex couples helps the parties in trying to resolve their issues. The mediator can point out the hurdles that may come in taking the case to a trial. The mediator who is familiar with rulings in same-sex couple cases can provide insight and help the parties reduce risks involved with taking a case to trial.