At first, same-sex marriage did not seem to impact our Firm’s divorces. When same-sex marriage became legal, then it seemed obvious to me that all of the divorce laws we had been using for years regarding heterosexual couples would simply now apply to same-sex couples.

Our Firm extended its  divorce services immediately to same sex couples.  In fact, we believe our Firm was the first to file a same-sex divorce in Bexar County.

But, a deeper look at the law reveals that property and parental rights are impacted significantly by the law change.

Common Law Marriage in Texas for Same-Sex Couples

Today, a same-sex couple is considered common law married, if they meet the same statutory requirement in Texas of heterosexual couples.  Namely that:

  1. the couple has a signed declaration of marriage; or
  2. The couple agreed to be married and lived together in Texas as a married couple, and represented to others that they were married.

This is extremely important:  If a couple meets these requirements, even before the same-sex marriage law passed, then the couple is still considered married in Texas, as of the date of the common law marriage.

In other words, Texas is treating same-sex divorce as though same-sex marriage was never illegal.  This can impact how an individual should categorize their property (community or separate) upon divorce.

The law today is, if you were common law married as a same sex couple in 2014, then even though Texas would have previously not considered property gained as community, it now does, retroactively.

The principle also impacts parentage.  Under Obergefell, any child produced during a marriage is presumptively the child of both parties to the marriage.