Since Obergefell v. Hodges, same-sex couples marry and divorce in Texas under the same Family Code as everyone else. The procedure is identical. What can be complicated is a question that rarely arises in other cases: when did the marriage begin? Section 6.712 now requires every Texas divorce decree to state the date of the marriage, which puts that question squarely in front of the court.
The Law Today
Texas courts grant divorces to same-sex spouses on the same grounds, with the same 60-day waiting period, the same community property rules, and the same maintenance standards. Section 6.204 remains printed in Chapter 6, but it is unenforceable following Obergefell and does not affect your case.
Why the Marriage Date Matters So Much
Community property is everything acquired during the marriage. For a couple who lived together for fifteen years but formally married in 2016, that line determines whether a decade and a half of accumulated assets and retirement contributions is community property to be divided or the separate property of whoever holds title. In practice this is usually the single largest issue in the case.
Informal Marriage and Pre-2015 Relationships
Texas recognizes informal marriage under § 2.401 — an agreement to be married, living together in Texas as spouses, and representing to others that you are married. Texas courts have addressed whether an informal marriage can be established with an inception date before same-sex marriage was legally recognized, and results have varied. It is a fact-intensive argument that turns on the evidence of the couple’s agreement and conduct, and it is worth developing carefully because the financial stakes are so high.
Building the Evidence
Useful proof includes commitment or wedding ceremonies and the records around them, rings, joint property and account records, wills, powers of attorney and beneficiary designations naming the partner as spouse, employer domestic partner or spousal benefit enrollments, out-of-state marriage licenses, and testimony from family, friends, and coworkers about how the couple presented themselves. Remember the two-year presumption in § 2.401 if the couple has already separated.
Out-of-State Marriages
A couple who married in another state before Texas recognized same-sex marriage is validly married in Texas, and the marriage date is the date of that ceremony. Texas courts can dissolve it as long as the residency requirements are met.
Practical Points
Beyond the marriage date, the issues are ordinary divorce issues: characterization, retirement division by QDRO, the marital home, and beneficiary updates. Where the couple owned property jointly before the marriage began, expect a mix of divorce claims and ordinary co-ownership claims in the same case.
Frequently Asked Questions
Can same-sex couples get divorced in Texas?
Yes. Same-sex divorces proceed under the same Family Code provisions, residency rules, and property division standards as any other Texas divorce.
Can our marriage date be earlier than our wedding?
Possibly. If the elements of an informal marriage were met, the marriage may have begun earlier, which can dramatically change what counts as community property.
Is our out-of-state marriage valid in Texas?
Yes. A marriage validly entered in another state is recognized, and the marriage date is the date of that ceremony.
Texas Statutes Referenced
- § 2.401 — Proof of Informal Marriage
- § 6.301 — General Residency Rule for Divorce Suit
- § 3.002 — Community Property
- § 3.003 — Presumption of Community Property
- § 6.712 — Date of Marriage Requirement in Final Decree
- § 7.001 — General Rule of Property Division
Related Pages
- Texas Divorce (main page)
- Common-Law Marriage and Divorce
- Community vs. Separate Property
- Venue and Jurisdiction
Talk With a Texas Divorce Attorney
If the start date of your marriage is in dispute, that is where your case will be won. Call 713-955-6182 or contact The De Leon Law Firm.