Going through a divorce is challenging for any couple, but same-sex couples may face specific legal considerations that benefit from working with an attorney familiar with both Texas family law and LGBTQ issues. At Smith & Bledsoe Family Law, we provide representation for LGBTQ and same-sex divorce cases throughout Austin and Central Texas. Whether you’re addressing property division, custody arrangements, or spousal support, our team works to protect your rights and guide you through each stage of the process.
Why Choose Smith & Bledsoe Family Law for Your Same-Sex Divorce
When you are looking for an LGBTQ divorce attorney in Austin, experience and understanding are important. Managing Partner Christian Smith has earned recognition as a Texas Super Lawyers Rising Star for 2023 and 2024 and has been named an Austin Monthly Top Attorney in 2023. He also received the National Association of Family Law Attorneys Top 10 Under 40 award in 2019. Our firm maintains a 5.0 Avvo rating with 197 client reviews, reflecting strong client feedback about our responsiveness and representation.
Our team includes eight attorneys and over 15 staff members focused on family law. We have significant familiarity with Travis County judges and local court procedures, along with a clear commitment to serving the LGBTQ community. We do not avoid complex cases and are prepared to advocate for clients facing challenging circumstances that some attorneys may decline.
Understanding Same-Sex Divorce in Texas
Legal Rights for Same-Sex Couples
Same-sex marriage became legal throughout the United States following the 2015 Supreme Court decision in Obergefell v. Hodges. In Texas, same-sex couples have the same divorce rights as heterosexual couples. Texas operates as a “no-fault” divorce state, meaning you do not need to prove wrongdoing by your spouse to end the marriage.
To file for divorce in Texas, at least one spouse must have lived in the state for six months before filing. The primary ground for divorce in Texas is insupportability, which means the marriage has become insupportable due to discord or conflict that prevents any reasonable expectation of reconciliation. This standard applies equally to all couples, regardless of sexual orientation.
Unique Considerations for LGBTQ Divorces
Although Texas law treats same-sex couples the same as heterosexual couples in divorce proceedings, LGBTQ divorces can involve particular legal issues. Non-biological parents often need clear legal protections for their parental rights. If you and your spouse adopted children together, or one spouse adopted while the other became a parent through second-parent adoption, establishing and safeguarding those rights requires careful legal planning.
For couples who were together before 2015, questions can arise about the timing and recognition of the marriage or how to characterize property acquired before the marriage was legally recognized. Our attorneys understand these nuances and work to protect your interests. Community property principles apply equally to same-sex couples, meaning assets acquired during the marriage are generally considered community property regardless of whose name is on the title.
Property Division in Same-Sex Divorce
Texas community property law applies equally to same-sex couples. Courts generally treat property acquired during marriage as community property. They divide community property in a way they consider just and right. A spouse usually keeps property they owned before marriage or received as a gift or inheritance.
Courts consider earning capacity, marriage length, and each spouse’s contributions when dividing community property. Property division can become complex with businesses, real estate, or significant retirement accounts. Our attorneys can work with financial professionals to identify and value assets properly. We can also address debt division so you understand your obligations and avoid unfair marital debt allocation.
Spousal Support and Maintenance
Either spouse may be eligible to request spousal support, also known as maintenance, depending on the circumstances. Texas courts look at factors such as the length of the marriage, each spouse’s earning capacity, the standard of living during the marriage, and each spouse’s age and health. Spousal support is not automatic; specific eligibility requirements must be met.
The duration of spousal support depends in part on how long you were married and the basis for the award. Shorter marriages generally result in shorter support periods, while longer marriages may result in longer-term obligations, subject to statutory limits. If circumstances change significantly after the divorce—such as job loss, disability, or a substantial increase in income—either spouse can request a modification of the support order. We help clients understand their potential rights and obligations and work to reach fair agreements or present their position in court.
Child Custody and Parental Rights
Custody for Biological and Non-Biological Parents
Texas courts apply the “best interest of the child” standard when making custody decisions. This means the court focuses on what arrangement supports the child’s physical, psychological, and emotional needs. Courts often appoint one parent as a managing conservator (similar to primary custody) and the other as a possessory conservator (similar to visitation), though joint managing conservatorship is common.
For same-sex couples, securing parental rights for non-biological parents is especially important. If only one spouse is the biological parent, the other spouse typically needs to pursue second-parent adoption to establish legal parental rights. Without adoption, a non-biological parent may have no legal claim to custody or visitation if the relationship ends. We explain the importance of adoption and guide clients through the process to help protect their families.
Child Support Obligations
Texas child support guidelines provide a framework for calculating support based on the paying parent’s income and the number of children. The guidelines assume a certain percentage of income should go toward child support, but courts can deviate from this amount when circumstances justify it. If either parent’s income changes significantly, either can request a modification of the child support order. We help ensure support orders are reasonably tailored to your situation and are enforceable.
Our Approach to Same-Sex Divorce Cases
We offer multiple paths to resolution. Many couples benefit from mediation or collaborative divorce, where both spouses work with their attorneys to reach an agreement on key issues. These processes can reduce cost, shorten timelines, and give you more control over outcomes than full litigation.
When litigation is necessary, we are prepared to advocate assertively for your rights in court. Our attorneys have trial experience and are accustomed to handling complex cases and challenging opposing positions. Throughout your matter, we maintain regular communication, explain your options clearly, and help you understand the implications of each decision. We approach LGBTQ divorce cases with awareness of the community’s concerns and strive to create a respectful, inclusive environment for our clients.
Frequently Asked Questions
How long does a same-sex divorce take in Texas?
The timeline depends on whether your divorce is contested or uncontested. If you and your spouse agree on all issues, an uncontested divorce can sometimes be finalized shortly after the 61-day mandatory waiting period. If there are disputes over property division, custody, or support, the process often takes several months to two years or more, depending on the complexity of the issues and the level of conflict.
Do we have to go to court if we agree on everything?
Not usually. If you and your spouse reach agreement on all issues, you can resolve your case largely through paperwork and a brief, limited court appearance or submission, depending on the county’s procedures. You will sign a settlement agreement covering property, custody, support, and other matters, and submit it for court approval. The judge reviews it for fairness and legal compliance before entering a final decree.
What documents should we gather before starting the divorce process?
It is helpful to gather financial records such as bank statements, investment and retirement account statements, and tax returns from the last two years. Collect documents related to real property, vehicles, and other major assets, including deeds, titles, and mortgage or loan statements. If you have children, gather information about their school, healthcare, and extracurricular activities. Any prenuptial or postnuptial agreements should also be located and provided to your attorney.
How is property divided in a same-sex divorce in Texas?
Texas community property law governs property division. Courts usually treat most assets acquired during marriage as community property. They divide those assets in a way they consider just and right, not automatically 50/50. Judges evaluate each spouse’s finances, contributions to the marriage, and other relevant factors. Separate property usually stays with the owning spouse. This includes property owned before marriage or received as a gift or inheritance. However, spouses must prove separate property with evidence.
What happens to parental rights for non-biological parents?
Non-biological parents who complete a formal adoption usually gain the same legal rights as biological parents. They also take on the same legal responsibilities. Without adoption, Texas law may not recognize your legal parental status. That can happen even if you handle daily parenting. In that situation, your options may become more limited. That is why many same-sex couples use adoption to establish legal parentage.
Can we modify custody or support orders after divorce?
Yes. Either parent can request modification of custody or support orders when there has been a material and substantial change in circumstances, such as a significant change in income, relocation, or changes in the child’s needs. The court will review the changes and determine whether modifying the existing orders is in the child’s best interest.
Contact Smith & Bledsoe Family Law for Your Same-Sex Divorce Consultation
If you’re facing a same-sex divorce in Austin or Central Texas, Smith & Bledsoe Family Law is available to help. Call (512) 277-3166 today to schedule a consultation with one of our family law attorneys. We will review your situation, discuss your goals, and outline potential strategies. With offices serving the greater Austin area, we aim to provide accessible, informed representation as you move forward with your life.