Same Sex Marriage

Same-Sex Marriage and Divorce in Texas: Legal Rights, Challenges, and Issues for Lesbian Couples

If you’re in a same-sex marriage—particularly a lesbian relationship—there are specific legal hurdles you might face in Texas. While the Obergefell v. Hodges Supreme Court decision in 2015 brought marriage equality nationwide, some lingering complexities still exist, especially when it comes to divorce, parental rights, and healthcare.

If you’re in a same-sex marriage or considering divorce in Texas, it’s important to know your legal rights. This guide will walk you through the unique issues lesbian couples face in Texas, from marriage to child custody, and what you can do to protect your family.

Historical Context of Same-Sex Marriage in Texas

Before the landmark Obergefell v. Hodges ruling, Texas had a strict constitutional ban on same-sex marriage. In fact, Texas Family Code §6.204 specifically prohibited the recognition of same-sex marriages, which left many lesbian couples unable to access legal marriage or its benefits. Couples who were married in other states couldn’t have their marriages recognized here in Texas either.

Activists and plaintiffs in key cases, including lesbian couples, were instrumental in pushing for marriage equality. One notable case was De Leon v. Perry, a 2014 Texas lawsuit that challenged the state’s ban on same-sex marriage. These cases laid the groundwork for nationwide marriage equality.

The Impact of Obergefell v. Hodges on Lesbian Couples in Texas

In June 2015, the Supreme Court’s decision in Obergefell v. Hodges changed everything, legalizing same-sex marriage across the United States. In Texas, this ruling nullified the state’s same-sex marriage ban, making it possible for lesbian couples to marry and enjoy the same legal rights as heterosexual couples.

Before this ruling, many couples were in legal limbo—some were married in other states but couldn’t access spousal benefits or get legally divorced in Texas. After Obergefell, lesbian couples gained the right to marry and receive legal protections related to property, inheritance, healthcare, and parental rights.

Marriage, Parental Rights, and Adoption for Lesbian Couples in Texas

While Obergefell legalized marriage, parental rights can still be tricky for lesbian couples. If you’re in a same-sex marriage and planning to have children, understanding Texas’s laws on parental rights is crucial.

Parental Rights for Lesbian Couples

In Texas, when a child is born to a heterosexual couple, the law assumes that the husband is the second legal parent. However, in a lesbian relationship, only the biological mother is automatically granted legal parenthood. The non-biological mother does not automatically have parental rights, even if she is married to the biological mother.

This can lead to complications if the relationship ends. To protect both parents’ rights, the non-biological parent should consider second-parent adoption. Under Texas Family Code §162.001, second-parent adoption allows the non-biological parent to legally adopt the child, giving them equal parental rights.

Birth Certificates and Sperm Donation

While lesbian couples can both be listed on the child’s birth certificate, this is not always sufficient in securing legal parenthood for the non-biological parent. Having both names on the birth certificate does not guarantee parental rights in a legal dispute.

Additionally, for couples using a sperm donor, it’s critical to understand the legalities. If you use a known sperm donor, you’ll need to ensure their parental rights are waived to protect the non-biological parent’s legal standing.

Same-Sex Divorce: The Legal Process for Lesbian Couples

Unfortunately, marriages sometimes end, and lesbian couples face the same legal process for divorce as heterosexual couples in Texas. However, there are a few unique challenges you might encounter in a same-sex divorce.

Filing for Divorce in Texas

The divorce process for same-sex couples follows the same legal steps as any other marriage. Texas is a no-fault divorce state, meaning you don’t need to prove fault to file for divorce. Instead, you can simply cite “insupportability,” which is the legal term for irreconcilable differences. You can learn more about no-fault divorce in Texas Family Code §6.001.

One thing to keep in mind is Texas’s residency requirement. Before filing for divorce, at least one spouse must have lived in Texas for six months and in the county where the divorce is filed for 90 days, per Texas Family Code §6.301.

Dividing Property and Assets in Same-Sex Divorce

Texas follows community property laws, meaning all assets acquired during the marriage are considered jointly owned. This also applies to same-sex couples, so property and debts will be divided equally. However, lesbian couples who were together long before Obergefell might face complications. If your relationship began before same-sex marriage was legal, you may need to prove when community property began.

Community property laws are outlined in Texas Family Code §3.002. If you have significant assets or debts, working with an attorney can help ensure a fair property division.Child Custody and Visitation in Same-Sex Divorce

Child custody is often the most emotional part of a divorce, and for lesbian couples, it can become especially complicated if both partners are not legally recognized as parents.

Custody Rights in Lesbian Divorces

In Texas, custody (or conservatorship) is determined based on the best interests of the child, as outlined in Texas Family Code §153.002. However, if only one spouse is the biological or adoptive parent, the non-legal parent may face challenges in seeking custody or visitation.

If the non-biological parent has not completed second-parent adoption, they may not have legal standing to seek custody or visitation. Courts typically prioritize the legal parent, so establishing legal parenthood through adoption is crucial for securing parental rights in a divorce.

Child Support

If both partners are legal parents, the court will order child support based on standard guidelines, with the non-custodial parent paying support. These guidelines apply equally to same-sex and heterosexual couples.

Unique Healthcare and Fertility Challenges for Lesbian Couples

Lesbian couples often face specific challenges when it comes to healthcare and fertility. Access to fertility treatments, like IVF or artificial insemination, can vary, and not all insurance providers cover these services for same-sex couples. If you’re considering starting a family, it’s important to understand what your insurance plan covers and any legal issues surrounding fertility treatments.

Financial and Property Rights for Married and Divorced Lesbian Couples

Once married, lesbian couples have the same financial rights as any other couple. This includes access to spousal benefits, retirement plans, and Social Security. However, securing these benefits can sometimes require extra steps. For example, if your employer or benefits provider is slow to recognize same-sex marriages, you may need to advocate for your rights.

After divorce, these rights, including spousal support, are also subject to division based on Texas law. Working with a financial advisor or attorney can help you protect your financial interests post-divorce.

Legal Challenges and Discrimination Faced by Lesbian Couples

Even though same-sex marriage is legal, some lesbian couples in Texas continue to face discrimination. Religious freedom laws allow businesses to refuse services to same-sex couples based on their beliefs, which has impacted everything from wedding services to adoption and fertility treatments. It’s important to know your legal options if you face discrimination.

Additionally, in custody disputes, non-biological parents might face additional legal battles to secure their rights, especially if they haven’t completed the second-parent adoption process.

The Future of Same-Sex Marriage and Divorce for Lesbian Couples in Texas

While same-sex marriage is currently protected, political and legal challenges could affect future rights. Advocates worry that a shift in the Supreme Court could reopen cases like Obergefell, and it’s important for lesbian couples to stay informed and prepared.

Organizations like Equality Texas and the National Center for Lesbian Rights continue to fight for equal treatment, and staying involved with these organizations can help you stay informed about any potential changes to your rights.

Final Thoughts

Navigating marriage, divorce, and parental rights as a lesbian couple in Texas comes with its own set of challenges. Understanding the legal landscape, from second-parent adoption to property division in divorce, is key to protecting yourself and your family. By staying informed and working with legal professionals, you can ensure that your rights are upheld—even in complex situations.

Marriage equality may be the law of the land, but protecting your family requires legal planning and advocacy.

Kevin Cathcart, Executive Director of Lambda Legal, talks to Bloomberg Law’s Lee Pacchia about yesterday’s US Court of Appeals for the 9th Circuit ruling regarding same-sex marriage. The appeals court affirmed a lower court ruling that held California’s Proposition 8, which banned same-sex marriage, violated the US Constitution. The narrowness of the ruling makes it more likely it will survive any appeals, he says.