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Houston Same-Sex Marriage Family Law: Divorce in a New Era of Legal Decisions

We recognize that while great strides have been made in achieving equality, same-sex couples still face distinct struggles, particularly when it comes to legal matters such as divorce. We empathize with the complexities and emotions involved in these situations, and our team of experienced attorneys are here to provide compassionate support and guide you through the legal process. With our expertise in LGBT family law, we are committed to helping you navigate the intricacies of divorce and other family-related issues, ensuring that your rights are protected, and your voice is heard.

Obergefell v. Hodges

Obergefell v. Hodges was the landmark case that forever changed the course of family law. After this decision was handed down by the Supreme Court of the United States, same-sex couples could now get married and enjoy all the privileges bestowed to married couples.  A United States Supreme Court decision that was decided after Obergefell states that the “differential treatment of same-sex married couples infringes Obergefell’s commitment to provide same-sex couples ‘the constellation of benefits that the States have linked to marriage.”  Thus, the Supreme Court has been attempting to reinforce their decision in Obergefell in similar cases.

Same-Sex Couples Can Get Married

Because same-sex couples could now get married—as of June 26, 2015—several significant avenues have opened up within the world of family law. The legalization of same-sex marriage has granted equal rights and recognition to these couples, allowing them to embark on the journey of building a life together, just like their heterosexual counterparts. However, with marriage also comes the possibility of divorce. While it is a difficult reality to face, same-sex couples may find themselves navigating the complexities of divorce proceedings. At the same time, the legalization of same-sex marriage has also paved the way for the adoption of children into same-sex family homes. This has offered a newfound opportunity for loving and committed same-sex couples to expand their families and provide stable and nurturing environments for children in need. These developments have brought both joy and challenges to the lives of same-sex couples, underscoring the importance of having legal guidance and support throughout the various family law processes they may encounter.

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Work on being flexible with the other parent.

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Same-Sex Couples Can Get Divorced

It seems easy enough, right? You no longer want to be married so, you get a divorce, BUT what is still a murky area in same-sex divorce and especially comes into play for division of the community estate in family law, is when did the marriage actually happen?  Does it apply retroactively to when the couple first decided they wanted to be married, such as a common-law marriage, but by virtue of the law not allowing same-sex marriage, they couldn’t get married? OR does it apply to the actual date the couples were married after the Supreme Court decided in Obergefell v. Hodges that same-sex marriages were legal in the entire United States?

Let us just say that there is still no definite answer to this.  However, usually when a decision comes down by the Supreme Court of the United States, their new decision, which overturns a previous decision, applies retroactively. However, there is still much active and ongoing litigation in this realm.

Our office has experience handling complex same-sex divorces in which sometimes the spouses have agreed that the date of marriage applies retroactively to the time they decided to be married before Obergefell v. Hodges was decided.  However, by law the community estate is not established until the date on the marriage certificate, and it is entirely up to the couple to decide to set the date of the community estate prior to the date they were legally married; retroactive application is not legally required in a same-sex divorce.

How Does Same-Sex Divorce Affect Child Custody?

Child custody matters are always complicated, and child custody matters in a same-sex marriage are no exception. Generally speaking, custody decisions during a divorce are made after the judge considers a variety of factors, such as the age and needs of the child and the child’s relationship with each parent. From a legal perspective, courts handle child custody matters in both same-sex and heterosexual divorces the same way. There are no legal differences.

Any custody decision will be made by assessing what is in the best interest of the child. Thus, this will be the controlling standard used by the court regardless of the sexual orientation of the parents.

In determining what is in the child’s best interest concerning child custody, visitation, and support, Texas courts will consider a number of factors, such as:

  • The desires of the child,
  • The current and future physical and emotional needs of the child,
  • The existence of any emotional or physical danger to the child,
  • The parental abilities of the parties seeking custody,
  • The existence of any programs available to assist the parents in promoting the best interest of the child,
  • Any plans for the child made by the parent seeking custody,
  • The stability of the home,
  • The acts or omissions of the parent that may indicate the parent-child relationship is not proper, and
  • Any excuse(s) for the parent’s acts or omissions.

These factors, referred to as the “Holley” factors, were set forth in the 1976 Texas Supreme Court case, Holley v. Adams. While the courts have the discretion to look at other factors, the sex of the parents is not a factor relevant to determining the best interest of the child for purposes of child custody decisions.

What Complications May Arise From Same-Sex Divorce?

The State of Texas has not always recognized same-sex marriages. As a result, while same-sex divorces should be handled in the same manner as opposite-sex divorces, there are certain complications to be aware of that could arise.

For example, although the landmark United States Supreme Court case Obergefell v. Hodges ruled that same-sex marriages must be legally recognized, the Texas legislature has not yet updated the language of relevant statutes to reflect the Court’s decision. In fact, Texas Family Code § 2.001 still states that a marriage is between a man and a woman and that a marriage license “may not be issued for the marriage of persons of the same sex.” This understandably causes confusion for many people. Nevertheless, rest assured that despite the outdated statutory language, the ruling in Obergefell v. Hodges remains the applicable law of the land.

Child custody is another area where complications can arise for same-sex couples. Typically, a biological parent will automatically receive parental rights, but this is not the only way to establish parentage.

In cases where one or both parents are not the biological parent of the child, Texas Family Code § 160.201 specifies that the parent-child relationship can also be established by legally adopting the child. Importantly, however, Texas does not grant parental rights to donors using assisted reproduction methods like artificial insemination.

These issues aside, if both parties of the same-sex couple have established their parental rights over the child, custody matters will generally proceed the same as in a heterosexual divorce.

Lastly, even though same-sex marriage is valid and legally recognized in Texas and throughout the United States, the unfortunate reality is that same-sex couples continue to face bias and discrimination. Thus, it’s crucial that you have a strong advocate in your corner who will fight for your rights in the face of potential discrimination and unfair treatment. Speak with an experienced same-sex marriage lawyer in Houston, Texas, to discuss your rights and options today.

Same-Sex Divorce – Still Some Unanswered Questions

Same-sex divorce, while now legally recognized, continues to present unique challenges and unresolved issues within the realm of family law. One such issue is the retroactive application of the date of marriage, which can have significant implications on property division, spousal support, and other related matters. The complexities surrounding same-sex divorce underscore the need for experienced legal representation that is well-versed in the intricacies of same-sex family law.

At Ramos Law Group, PLLC, we understand that navigating these unanswered questions can be overwhelming and confusing. Our dedicated team of attorneys are committed to providing comprehensive support and guidance to same-sex couples seeking divorce. We stay at the forefront of legal developments in this evolving area of law, ensuring that our clients receive accurate and up-to-date advice.

We are prepared to fight for your rights and work diligently to find the answers you seek. Our attorneys will explore every avenue and utilize their expertise to tackle the unresolved issues surrounding same-sex divorce. We believe that every question deserves an answer, and we are here to provide the clarity and advocacy you deserve.

If you have questions about same-sex marriage or divorce, we encourage you to reach out to the knowledgeable divorce attorneys at Ramos Law Group, PLLC. We offer compassionate and confidential consultations to discuss your unique circumstances and determine the best course of action for your case. With our guidance, you can navigate the complexities of same-sex divorce with confidence and peace of mind.

Our Client Testimonials

Superb Law Firm

The decision to end my 25-year marriage was not an easy one, but hiring the Ramos Law Group was. From the initial consultation to the execution of the Divorce Decree everyone at the firm displayed the utmost professionalism and I was treated as if I was their only client. My attorney Lindsey, always provided precise legal guidance, was usually one step ahead of the opposing counsel, and had a superb understanding of how things would play out in the court room. Additionally, whenever my case needed a little extra horsepower, Mary provided that "surge" to keep things on track.

Worth Every Penny

"Ms. Ramos and her entire staff worked with professionalism and compassion to guide me through the most difficult time of my life and to an outcome that was best for my family and myself. Ramos Law is incredible and I highly, highly recommend their services."

Custody case won

"I was recommended to see Mary Ramos for my on coming custody case,it was the best thing I could've done honestly.The Ramos law group was quick with emailed responses and telephone calls,informative with ANY questions I had and they also took action with what they thought would work,which it did,I had money troubles and they were still willing to help they sent me with a younger lawyer Lindsey Lewis to help save some money and she was the best!She knew what she was doing and Mary was still on my case to make sure things went smoothly and to catch any details Lindsey and I might have missed.All in all I am a very satisfied client and if I ever needed a family lawyer again I would come back.My case was won as I received primary for my daughter which is exactly what I asked for.If you're willing to listen to what they have to say and follow their guidance they're definitely worth hiring.I thought I wanted sole custody for my daughter and they explained that wasn't in the best interest for her and honestly they were right,they speak to you on a professional level and also a real level of how things are actually going to work and what could happen if you take a certain action.They definitely care about their clients and make their own bond with you,you're not just money in their pockets you turn into family. "

Divorce Attorney

"I received excellent advice and representation from Ms. Lindsey Lewis. She kept me updated at every step of the process, and I never felt as if my case was set aside. I would hire The Ramos Law Group in the future. "

Highly recommend

"I started my divorce with a lawyer who was not very responsive. My divorce case was complicated and needed more laborious scrutiny. Since the case was not moving forward I had to switch lawyers. Made the switch to Ramos Law group. Since the very first day Mary and her team have been very efficient and meticulous. Since the case was complicated the team had to go through myriads of pages in discovery. I was pleased with the legal team that helped us handle the paperwork in a very timely manner. All my questions were answered very promptly. The relay of information was easy with their software system. We finally had a law firm that we could trust. My divorce was finalized and I only have Mary and her team to thank for going through a difficult divorce. I would highly recommend the Ramos law group for their help and support for getting my life back on track. "

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