Not long ago, state-recognized same-sex marriage was not an option anywhere in the United States. It was only a few decades ago that the first states began individually recognizing same-sex marriage and legal domestic partnerships between same-sex partners.
It has been just over a decade since the Supreme Court of the United States ruled in a case extending same-sex marriage rights federally and only a few years since federal lawmakers enacted legislation requiring that states recognize same-sex marriages solemnized in other jurisdictions. Same-sex couples who married in Texas or married elsewhere and moved to Texas may eventually decide to divorce. When they do, they are subject to the same laws as any other couple.
However, there may be a few complications during the divorce process. Custody matters can be complex when only one spouse has a biological or adoptive relationship to a child. Community property division can also sometimes be a challenge for those who have decided to end a same-sex marriage.
What complicates same-sex property division?
Community property rules usually only apply to assets acquired during a marriage, but that may not be fair in cases involving same-sex couples. Many same-sex couples may have enjoyed long-term relationships for years before they could legally get married to one another. They may have combined their finances and purchased major assets together long before the government recognized the validity of their relationship.
That can become a complicating factor when those couples decide to divorce. Contrary to what many people assume, community property rules do not necessarily mean that couples must split all of their assets evenly. If the divorcing same-sex couple cannot agree on specific terms, then a judge has to look at their situation carefully.
What matters is fairness, not necessarily an equal division of property. Factors including premarital commingling could potentially influence the final determination made by a judge in a same-sex divorce scenario. Particularly in cases where couples cohabitated, combined their finances and comported themself like a married couple before their marriage was legal, the property division process could potentially become quite complicated.
Understanding the rules that govern divorce proceedings can benefit those preparing for an upcoming divorce. Same-sex divorces are very similar to heterosexual divorces but may require a bit more planning on the part of the spouses to achieve a fair outcome.