Can A Gay Couple Marry and Divorce in Texas

In 2015, the Supreme Court of the United States recognized all same sex-marriages throughout the United States, precluded states from prohibiting same-sex couples to marry, and required states to give full faith and credit to legally recognized same-sex marriages from other jurisdictions.

This means that all same-sex couples can legally get married in any state in the United States, and the marriage in one state will be recognized as a valid marriage in all other states.

How does the Supreme Court ruling apply in Texas? Below is some brief information on how same-sex marriages, formal and informal are treated in Texas courts, whether marriages that commenced before 2015 are given validity, and the rules that apply for same-sex divorces. This piece is for informative purposes only and should not be construed as legal advice.


A Brief History of Laws Concerning Same-Sex Couples

Here is a brief look into the history of same-sex laws.

In 1993 the Supreme Court of Hawaii allowed same-sex marriages and considered any banning of same-sex marriages unconstitutional.

In 1996, Congress with a signature from then President, Bill Clinton passed the Defense of Marriage Act or (DOMA) recognizing marriage as a union only between a man and a woman. Texas followed in 2003, passing its own version of DOMA, recognizing marriage as a union between a man and a woman.

In 2003, Lawrence v. Texas case was decided by the United States Supreme Court, where the Supreme Court struck down anti-sodomy laws and held that consensual sexual activity between a same-sex couple was legal throughout the United States.

Finally, in 2015, the United States Supreme Court ruled in Obergefell v. Hodges that same-sex couples had the fundamental right to marry, and all states must recognize same sex marriages conducted within and outside each state.


What Does the Supreme Court’s Ruling Mean for Same-Sex Couples in Texas?

Same sex couples can get married, divorced, and enjoy the protections of the laws provided to hetrosexual couples (with some exceptions).

Since 2015, there has been no record of any Texas county clerk refusing to provide a marriage license to a same-sex couple. A same-sex couple can walk into any county court, request a marriage license and get marriage.

If a same-sex couple gets divorced, the couple will get the protections and privileges of Texas community property laws, that is, all property that was acquired during the marriage by each of the partners will be deemed community property subject to a just and right division between the parties at divorce.


Does the Same-Sex Marriage have to be a Formal Marriage? Are Informal Marriages of Same-Sex Couples Recognized?

All marriages, formal or informal between a same-sex couple are considered valid marriages. Any formal marriage evidenced by a marriage license is valid. Any informal marriage, as long as the date of the marriage is not contested by either party is also valid in Texas.

Additionally, the Supreme Court ruled in Obergefell that states must recognize marriages in other jurisdictions, therefore, same-sex marriages that took place outside Texas are also deemed valid in Texas.


Are Marriages Formal and Informal, Prior to Obergefell Decision Recognized?

Yes and No.

All formal marriages that took place prior to and subsequent from 2015 are recognized as lawful marriages by Texas courts.

Texas courts have a difference of opinion on the validity of informal marriages that commenced prior to 2015. Harris county courts recognize informal marriages between same-sex couples as valid, even if they commenced before the Obergefell decision in 2015. Recently however, a Dallas court refused to recognize informal marriage prior to 2015 as valid and held that the commencement date of such a marriage would be deemed 2015, the date of the decision of Obergefell.



What does this mean for a same-sex couple seeking divorce in Texas? A same-sex couple can get married and seek a divorce with application of community property laws in the state of Texas. Formal and informal marriages are recognized as valid in Texas. However, not all informal same-sex marriages may be recognized, and not all child custody and child support laws may apply to same-sex couples with children.

Furthermore, there may be an uphill battle of child custody, child support and parental issues if a same-sex couple has had children with a prior spouse of one partner, or a surrogate mother.

It is important to talk to an experienced family law attorney before considering divorce in a same-sex marriage couple due to the nuances and constant changes in Texas laws on this topic. Talk to an experienced family law attorney to know your rights.