Same-Sex Divorce

How do we get out?
by Connie Moore, Debbie Hunt, and Joshua Myers
Illustration by Caleb Smith

Unfortunately, not all marriages last. In fact, heterosexual marriage statistics show that 45 to 50 percent of first marriages end in divorce, and 60 to 67 percent of second marriages end in divorce. Persons who marry for a third time should know that 70 to 73 percent of those marriages will fail. It is also reasonable to assume that a fair number of same-sex marriages will end in divorce.

Ever since the first same-sex marriage license was issued in Massachusetts, many same-sex couples from Texas have traveled to other states to get married. Before that time, they also traveled to more progressive states in order to enter into civil unions or domestic partnerships. Texas does not grant same-sex marriage licenses, civil unions, or domestic partnerships, nor does it recognize those that are performed in other states or countries. This leads to many legal complications for same-sex couples who get married elsewhere and reside in Texas. This applies to same-sex couples who traveled to another state or country simply to be married, and also to couples who move to Texas after being married in their home state.

Marriage is a legally binding contract between two people. Marriage grants various legal rights and protections to each partner, while at the same time imposing legal duties on them. According to statistics, there are 1,138 federal benefits, rights, and protections provided to married couples. Additionally, there are state property rights that vary according to individual state law. Texas is a “community property” state, so married spouses have a presumed joint interest in property (regardless of title), have a built-in interest in each other’s incomes, and can also be held accountable for the other spouse’s liabilities.

If you are legally married and you and your spouse have decided to end the personal side of your relationship, then you must legally end it as well. The only way to legally terminate a marriage is through divorce. Many same-sex couples have the mistaken belief that since their marriage “doesn’t count” in Texas, a divorce isn’t necessary. Without a divorce, partners in a same-sex marriage may be subject to bigamy laws if they ever remarry, and each partner may have a right to the property earned by the other spouse during the marriage. Therefore, divorce is an important legal aspect of ending your marriage. Many transitioning couples seek a divorce as a way to obtain emotional and mental closure, change their legal status, and formalize the process of dividing property.

Divorce is not an easy option for same-sex couples who reside in Texas. In general, in order for a state to grant a divorce to a same-sex couple, the state must recognize the marriage as a legally binding relationship between the couple. Therefore, states that choose not to recognize the same-sex marriage itself will not typically grant a same-sex divorce, although Wyoming, Alaska, Ohio, and New Jersey are exceptions. There have been several publicized attempts by litigants to obtain same-sex divorces in Texas, but none of these cases has yet to be supported by the Texas Supreme Court. That currently leaves Texans with the daunting task of finding a state that will give them some relief.

Returning to the state (or country) where the marriage occurred for dissolution proceedings is no simple matter, as most jurisdictions have residency requirements that would require one member of the couple to move back to that state or country for as long as one year before dissolution. Currently, Washington DC and Vermont have six-month residency laws—the shortest period among states that grant same-sex divorces. Therefore, if you and your same-sex partner live in Texas, your best option for divorce might be to establish residency in Washington DC or Vermont.

Some same-sex marriage states are trying to address this issue. For example, there is a bill in Washington DC that would allow same-sex couples who were married there to obtain a divorce without having to meet residency requirements. However, even this comes with limitations. First, the same-sex marriage would need to have happened in Washington DC. Second, neither partner in the marriage could be a resident of a state that grants same-sex divorces. Finally, the District would not address any issues of conflict such as possession of children or contested property. While this is obviously helpful for some, it will not be enough for many married same-sex couples.

While there are a multitude of laws to guide us through an opposite-sex divorce, there is very little law or information on the rights and legal process involved with same-sex divorce. Combine this issue with state residency laws, and it becomes extremely difficult for same-sex couples who reside in Texas to obtain a divorce.

Where Does That Leave Us?

Without same-sex divorce laws, how do same-sex couples divide property at dissolution? In addition to the various divorce laws, each state also has its own way to handle property accumulation and division for cohabiting, unmarried couples. Generally speaking, states have their own unique remedies based on different legal theories. On one end of the spectrum, a handful of states will not validate any property claims arising out of a non-marriage cohabitation relationship. Going further, a small minority of states will not even enforce contracts for property division between unmarried cohabitants. At present, this group includes Georgia, Illinois, Louisiana, Mississippi, Ohio, and West Virginia.

On the other end of the rainbow, a few states grant property rights based on relationship status. These states will grant an equitable and just division of property to unmarried, cohabiting couples after proof is presented that their relationship meets certain standards. Washington has the most developed law of this type, and provides separating non-married couples many options for a fair property division.

Some states (including Texas) will consider property division claims between unmarried cohabitants if a written contract exists. Unfortunately, very few couples want to negotiate and sign a written contract concerning property division based upon the possibility that their relationship will end. Couples may enter the relationship with the intent to share their labor and property, but may never consciously determine all of the necessary agreements that are necessary to form an enforceable contract for dissolution.

What can couples do to sort out a very complicated and emotional situation? What happens when children are involved in the relationship? How can you come up with a workable parenting plan in the absence of divorce laws? Working through the court system is an available option, but often this process results in expensive litigation with piecemeal solutions. Legal professionals who work with same-sex couples in dissolution matters have learned that alternative methods for dispute resolution yield better results. These include informal settlement negotiations, mediation and/or arbitration with third parties, and using Collaborative Family Law.

Collaborative law is an alternative dispute resolution process that has emerged within the last decade and continues to gain steam within the LGBT legal community. Here are some of the key features of the collaborative process:

• The parties, each with their own attorney, define the issues to be decided and unanimously agree on a resolution for each issue; no resolution is reached without the agreement of all parties.

• There is an uncontested exchange of all information relevant to the dispute, protected from disclosure outside of the collaborative process and without the costs of formal discovery procedures.

• The parties control the final outcome; reliance on the arbitrary decision of a judge is avoided, and the parties have the ability to craft creative solutions that would not be possible through litigation.

• The parties opt out of court, except to finalize the agreement of the parties as necessary.

• Because the parties themselves control both the issues to be resolved and the final outcome, the parties also directly control the costs involved.

The collaborative dispute resolution process requires a team effort among the parties, the attorneys, and any outside experts required in order to receive the benefits of the process, such as parent coordinators and financial professionals. You and the opposing party must each have counsel with unquestioned skill and integrity, as well as special training and commitment to the collaborative process. A growing number of attorneys in Harris County, as well as throughout the state, fall into this category.

Collaborative law can be used by married couples and unmarried couples. It can be used when the primary issues are property settlement or when child custody and support issues are unresolved. It is a way to reach closure and a legally binding agreement. In the future, it will provide the tools that you can use to get an uncontested divorce granted in a sympathetic state.

We are confident that in the future there will be same-sex divorce in Texas, possibly before there is same-sex marriage. In the meantime, we continue to develop alternative methods for successful dissolution of same-sex relationships.

Moore & Hunt is the first women-owned boutique law firm in Houston to openly focus on lesbian, gay, bisexual, and transgender issues. Operating in the same location since 1987, the firm is comprised of attorneys Connie Moore and Debra E. Hunt. Moore works with families of all types with formation issues (adoption, surrogacy, and parentage in assisted reproduction) and family dissolution (divorce and custody litigation). Hunt concentrates on personal document drafting (wills, trusts, and powers of attorney), estate planning, probate litigation, contract negotiations and disputes, corporation and small business formations, and real estate matters.

Both attorneys are members of the National Family Law Advisory Council of the National Center for Lesbian Rights. The firm is a part of the cooperating attorney network of the Lambda Legal Defense and Education Fund. Moore and Hunt are charter members of the Texas State Bar LGBT Law Section. Moore has been trained in collaborative family law and is a strong believer in the collaborative model to resolve family disputes.

Joshua Myers is a third-year law student at South Texas College of Law in Houston.



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