LGBTQ Family Law in Texas
Even though same-sex marriage has been legal in all of the United States since June 26, 2015, these couples face different issues than heterosexual married couples in Texas. Some people thought that the obstacles same-sex couples faced would no longer exist, however, this just is not true. Certain obstacles have been resolved such as inheritance rights, filing taxes as a married couple, 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
If you are a heterosexual married couple there are automatic protections for a mother and father built into the family code. If they divorce there is an automatic assumption that dad is dad and mom is mom. This is not the case for same-sex married couples. Further, if mother passes away unexpectedly, there is an automatic assumption that dad is dad and the children will go with dad and vice versa. This is not always the case for same-sex married couples. The points below will provide some ways to ensure that the non-biological parent has those same assumptions.
Second (or Step) Parent Adoption– Prior to marriage being legal, same-sex 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, go through the process of a step-parent adoption. Many courts in Texas are not affording same-sex married couples the same presumptions that heterosexual married couples have when it comes to whether a child is presumed to be the other person’s child. With the election in 2018, a change in the Judges in Harris County has made been a positive change for same-sex couples. Many, if not all, of the Judges currently on the bench as of 2019 will likely approve a step-parent adoption for a same-sex married couple. This will have the effect of reducing the costs incurred and time involved in going to a more “liberal” county to accomplish this.
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 parent’s 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 to Adjudicate Parentage – Not all couples can afford to do a step-parent adoption. There are fees involved with home studies, amicus attorneys, background checks, etc. Sometimes a couple chooses to file a Suit to Adjudicate Parentage which essentially provides for the non-biological parent to be deemed a parent of 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. This really should be the last resort option. Even with the change in Harris County Judges, there are still many hurdles faced for a same-sex married couple with a child when they break up.
Other issues that are faced by the LGBTQ community relate to gender identity. What happens when you go through gender reassignment, but your name does not match your gender? What if you do not go through gender reassignment, but want your name to match the gender that you identify with? Is it possible to get a name change in either of these situations? The answer is maybe.
Other issues that are cropping up as a result of the right to marry 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? 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. If a common-law marriage existed, 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.
The ways to prove a common-law marriage existed are: (1) sign a declaration of informal marriage or (2) prove the elements of common-law marriage. The easiest is to have completed a declaration of informal marriage. That form can be found here. It allows you to pick the date you both agreed to be married. If a declaration of informal marriage was not signed, then the elements for a common-law marriage are: (1) agreed to be married, (2) after agreement, lived together as married, and (3) held out to others in Texas as married.
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 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.