Same-Sex Marriage and Divorce in Texas: Equality and Legal Consideration

The acceptance and legalization of same-sex marriage have paved the way for same-sex divorce to become a reality. In Texas, the process of obtaining a same-sex divorce is like that of a traditional heterosexual marriage divorce. This article explores the legal aspects and considerations surrounding same-sex divorce in Texas.

Equal Treatment under Texas Law: In Texas, the legal recognition and treatment of same-sex marriages are on par with heterosexual marriages. Regardless of sexual orientation, if a couple has a legal marriage and wishes to obtain a divorce, the legal process is essentially the same. This recognition ensures equal rights and protections for same-sex couples seeking to dissolve their marriages.

same-sex marriage and divorce

Child Custody and Conservatorship: Like any divorce involving children, same-sex couples must address child custody and conservatorship issues. The primary caregiver, regardless of sexual orientation, is typically given priority. Courts consider factors such as the child’s best interests, the primary caretaker, and any safety concerns related to drug or alcohol abuse. Same-sex couples go through the same conservatorship battles and assessments as heterosexual couples, ensuring fairness and protection for the children involved.

Surrogacy and Parental Rights: In cases where surrogacy is involved, a legal agreement, such as a gestational agreement, is typically put in place to determine parentage. This agreement defines the parental rights of both partners in a same-sex couple, even if only one partner is the biological parent. Surrogate mothers often relinquish their rights, transferring parental rights to both same-sex parents. The court recognizes these agreements and considers both parents as legal guardians, regardless of biological connection.

Complicating Factors: Same-sex divorces generally follow the same legal procedures as traditional divorces. However, there are some unique considerations. For example, in traditional divorces, there is a marital presumption for any child born during the marriage. This presumption does not apply in same-sex divorces, removing the need to establish the same legal parental rights.

Benefits and Insurance Coverage: Texas law mandates that insurance companies cannot discriminate based on gender, sexual orientation, or any other factor. Therefore, same-sex spouses are entitled to the same benefits and insurance coverage as heterosexual spouses. This includes healthcare coverage and other employment-related benefits.

Division of Property: In Texas, same-sex divorces follow the principle of community property. Any assets or debts accumulated during the marriage are considered community property and subject to division between both parties. This ensures fairness and equitable distribution of marital assets, irrespective of the spouses’ sexual orientation.

The recognition and acceptance of same-sex unions mean that same-sex couples have the same legal rights and responsibilities when it comes to divorce. Child custody, property division, and other aspects of divorce proceedings are treated equally, ensuring fairness and equality for all couples, regardless of sexual orientation. Texas has taken significant strides toward embracing diversity and inclusivity in its legal system, reflecting the evolving societal norms surrounding marriage and divorce.

Martinez Legal, P.C. is available to serve your legal needs in family law, CPS cases, estate planning and business formations.  We have two locations to serve you:

  • 1317 E. McKinney Street, Ste. 109 Denton, Texas, 76209, or call 940-320-2922.  
  • 203 W. Walnut Street #103 Decatur, Texas 76234, or call 940-453-7816.