Members of the LGBT community often struggle to find the legal support they need and deserve. At Smith Family Law, we welcome clients from all walks of life. You can count on us to protect your rights and fight for you, whether facing divorce proceedings, child custody negotiations, or another family law matter. After the U.S. Supreme Court’s landmark ruling in Obergefell v. Hodges, Texas gave same-sex couples the same rights as other couples to get married. That also means LGBT couples can divorce and pursue civil action for spousal support, property division, and child custody. Since family law can be complicated, hiring an experienced LGBT family law attorney in Austin is critical.
Call Smith Family Law at (512) 277-3166 today for a free consultation to learn more about how we can help.
Divorce Requirements in Texas
The basic divorce requirements for straight married couples apply to same-sex couples. You must have lived in the state for a specific timeframe and cite one of the multiple grounds as the reason for petitioning for divorce.
However, members of the LGBT community might encounter geographical challenges during a divorce. That’s because many traveled to a different state to get married before Texas legally recognized same-sex marriage in 2015. If you married elsewhere, you must file for divorce in that state. Consulting with an LGBT family law attorney can provide clarity in such unique circumstances.
If you got married in Texas, the general residency rule under Texas Family Code 6.301 requires you or your spouse to be:
- A resident of the state for six months or longer
- A resident of the county where you’re filing the divorce petition for at least 90 days prior
You must also have an acceptable ground as the legal reason for dissolving the marriage. The ground you cite depends on whether you file for a no-fault or fault-based divorce. Given the intricacies of family law and its impact on the LGBT community, consulting an LGBT family law attorney can help ensure you’re making the right decisions.
A no-fault divorce means neither you nor your spouse cites the other’s fault as a reason for the marriage ending. A significant event didn’t necessarily happen to cause one of you to file the divorce petition. In a no-fault divorce, the two available grounds are:
- Insupportability – You can get divorced based on the marriage becoming insupportable due to discord or conflict of personalities destroying the relationship and preventing the possibility of reconciliation.
- Separation – If you and your spouse have lived apart without marital relations and the separation period lasts at least three years before filing, you can pursue a no-fault divorce.
You can file for a fault-based divorce when one spouse is accusing the other of marital misconduct. The grounds for a fault-based divorce include:
- One spouse leaves the other with the intention of abandonment and is gone for at least one year
- One spouse’s cruel treatment of the other makes it unfavorable to continue living together
- One spouse commits adultery
- One spouse receives a felony conviction during the marriage and spends at least one year in federal prison, the Texas Department of Criminal Justice, or a prison in another state and hasn’t received a pardon
- At the time of filing for divorce, the other spouse has been in a private or state mental hospital for at least three years, and a change appears unlikely due to the nature and degree of the mental disorder, or relapse is likely if a change does occur
How to Divide Property During a Divorce
The courts handle property division during same-sex divorces similarly to other divorces. Since Texas is a community property state, the courts must divide a divorcing couple’s community property in a right and just manner. That means each spouse will receive a portion of the property they jointly own based on what’s fair. However, fairness doesn’t always mean splitting everything down the middle.
For example, suppose one spouse is the sole breadwinner, and the other is a stay-at-home parent. In that case, the stay-at-home parent might receive more community property if they can’t earn enough income to support themselves.
Judges must distinguish between community and separate property before deciding on the case. Only community property is subject to division during a divorce. Community property is property either spouse acquires while married other than separate property, such as:
- Clothing
- Motor vehicles
- Life insurance policies
- Real estate, such as a marital home or rental property
- Jewelry
- Bank accounts
Separate property is property acquired by either spouse before the marriage or while married by devise, gift, or descent. For example, a car gifted by a parent or an inheritance received by a deceased relative is separate property.
The Texas courts will consider various factors to determine what is just and right, such as:
- Where either spouse acquired the property
- Fault in the marriage ending, such as adultery
- Tax issues
- Each spouse’s health
- Both spouses’ future employability
- Which spouse has custody of shared children
- The earning power differences between each spouse
Establishing Eligibility for Spousal Support
Either spouse can pursue spousal maintenance during divorce proceedings. However, the courts only award maintenance if the person requesting it doesn’t have the money necessary to meet their basic needs and one or more of these factors apply to their situation:
- They can’t earn the income needed to support themselves because of an incapacitating mental or physical ability.
- The other spouse has a conviction for family violence against them or the children during the pending divorce or within two years of the filed divorce petition.
- They were married for at least ten years and can’t make enough money to meet their basic needs or can’t earn income because they have custody of a child requiring substantial personal supervision or care due to a physical or mental disability.
State law presumes spousal maintenance isn’t appropriate in a divorce unless the spouse requesting the maintenance can prove they diligently tried to earn income or obtain the training or education needed to become financially independent during the pending divorce or separation and still requires support.
Once a judge determines spousal maintenance is necessary, they will decide on the amount, nature, and duration of the payments by considering relevant factors under Texas Family Code 8.052.
Same-sex couples can experience significant challenges during a maintenance case. That’s because one factor in determining spousal maintenance is the length of the marriage. However, many LGBT couples were in relationships for years or decades before they could legally marry. Some judges will consider the entire length of the relationship while deciding the amount and duration of maintenance payments. However, others don’t include the number of years a couple is together before marrying while calculating maintenance.
Navigating Child Custody Issues in a Same-Sex Divorce
Many courts are still unfamiliar with transgender issues in family law matters. Smith Family Law can step in to help. An experienced and knowledgeable LGBT family law attorney in Austin can protect your rights under state law during child custody negotiations.
Since same-sex couples can legally adopt children, members of the LGBT community can be the legal parents of a child regardless of their gender identity or sexual orientation. They also have the same rights to custody as a mother or father in an opposite-sex marriage.
In your divorce, you can fight for custody (where your child lives) and control (major decisions like medicine, school, & religion)
You might still have custody rights even if you never adopted the child. Whether the child is from a previous marriage or you and your spouse conceived the child through assisted reproduction, you can file a suit affecting the parent-child relationship. As the non-legal parent, you must be someone other than a foster parent with actual control, possession, and care of the child for six months or longer, ending no more than 90 days before filing the petition with the court.
How Child Support Works in LGBT Family Law
You can pay or receive child support regardless of gender identity or sexual orientation in Texas. Before the Obergefell v. Hodges ruling, state laws typically presumed the man to be the father of a child born during a marriage to the mother.
However, multiple states, including Texas, now apply the presumption to the wife of a mother who uses assisted reproduction to give birth to a child. That means you might be on the hook for child support even if you aren’t a biological parent.
Typically, the noncustodial parent, the parent who doesn’t primarily live with the child, is the one to provide the other parent with child support. The child support guideline calculates the noncustodial parent’s net resources to determine how much they must pay. To determine net resources, a judge will first calculate gross monthly income, such as all salary and wages, overtime, and dividends, and subtract these expenses:
- Union dues
- Social Security taxes
- Dental and health insurance premiums
- Federal income taxes at a tax rate for a single person who claims one exemption
- State income taxes
Then the judge will multiply that number by a percentage based on the number of children the couple shares.
Protect Your Rights with a Dedicated LGBT Family Law Attorney in Austin
As an LGBT individual, you face various challenges while pursuing a family law matter. You should not hesitate to hire Smith Family Law. We will fight for your interests and fair treatment. You can count on our team to aggressively seek your desired outcome.
Call us at (512) 277-3166 for a free consultation if you need representation during a divorce, property division dispute, or another family law issue.
LGBT Family Law FAQs
Here are some straightforward answers to some of the most common questions we receive about LGBT family law in Texas:
Do I Have to Go to Court for My LGBT Divorce in Texas?
The divorce process for same-sex couples is largely the same as it is for heterosexual couples in Texas. Whether you will need to appear in court for an LGBT divorce largely depends on the specific circumstances when you file for divorce.
If you agree on all relevant issues, such as division of property, child custody, child support, and spousal support, you might be able to file for an uncontested divorce. This happens when a Texas family law judge grants a divorce with minimal need for court appearances or interventions.
Negotiation works for many Texas same-sex divorces. If court looms, seek an experienced attorney familiar with LGBT challenges. These cases commonly involve complex legal issues related to parentage, property rights, and spousal support that require careful navigation.
An attorney can provide guidance tailored to your specific situation and work to protect your rights and safeguard your future throughout the divorce process. Even if a court appearance is necessary, a good divorce attorney can streamline the process and work toward a favorable resolution on your behalf.
Is There Legal Separation in Texas? 
No. Unlike some other states, Texas does not recognize legal separations. You cannot obtain legal separation status instead of a divorce. This applies to all married couples, whether LGBT or heterosexual.
When spouses decide to live separately in the Lone Star State, Texas law doesn’t provide a legal framework for staying married but separating legally. Instead, the spouses are either married or divorced in the eyes of the law.
However, there are alternatives to legal separation for couples who wish to live apart and establish certain rights and boundaries without getting a divorce. Separating couples might consider drafting a “partition and exchange agreement.” These types of separation agreements can specify terms related to property division, spousal support, and child custody and support. They can be particularly useful in setting clear expectations during periods of separation in Texas.
It’s always advisable to consult a family law attorney familiar with LGBT issues to understand the best options and protections available during periods of separation in Texas. This is especially important for LGBT couples who wish to separate but aren’t ready to file for divorce.
What If My Same-Sex Spouse or I Have an Adopted Child, and Only One of Us Legally Adopted the Child?
In Texas, as in many states, parental rights and responsibilities are determined based on legal status rather than biological connection. For LGBT couples where only one spouse has legally adopted a child, that spouse has full legal custody of the child. Conversely, the non-adoptive spouses are not legal parents and might not have any established legal rights.
This can pose significant challenges for married couples in the event of a divorce or separation, regardless of sexual orientation. The spouse who has not legally adopted the child could face difficulties in securing custody and visitation rights. Even if they have played an integral role in raising and caring for the child, the legal system will not automatically recognize this without a court order.
Don’t navigate it alone. our team of experienced family law attorneys can guide you on securing parental rights, navigating adoption, and crafting fair parenting agreements that honor both parents’ vital roles in your child’s life.
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