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Same-Sex Divorce & Child Custody in Texas: Frequently Asked Questions

In many ways, same-sex divorces are no different than a divorce between a straight couple. But it also presents unique issues that you need to be aware of before you can proceed. To learn more about the same-sex divorce process in Texas, read the answers to some of our most frequently asked questions below.

Which counts, the prenuptial agreement we created when we got married in another state or the cohabitation agreement we created here in Texas?

Now that same-sex marriage is legal in Texas, your prenuptial agreement would trump your cohabitation agreement, assuming the prenup is valid.

What about property I have acquired while separated from my spouse? Is that community property?

Almost any asset you acquire while married will be considered community property in Texas, even if you were married in another state, and even if you and your spouse have lived apart for years. Until your marriage is dissolved, the property that you and your spouse accumulate must be divided 50/50 in divorce.

Will I have child custody or visitation rights?

It depends on if you have a legal relationship with the children. If you are not the children’s biological parent, or if you never legally adopted them, you have no legally enforceable parental rights. However, you still may be able to negotiate shared custody or visitation time as part of your divorce settlement.

Can common-law marriage affect my divorce?

Common-law marriage is a way for people to assert marriage or divorce rights, even if they and their spouse never got legally married. Texas recognizes a common-law marriage when the following are true:

  • The couple resides in Texas
  • They hold themselves out as married, such as by living together
  • They agree to be married

If you never legally married but can establish that you were married under Texas common law, you could be entitled to things like community property division, spousal support and child custody.

Know Your Rights And Options Under Texas Family Law

For more information about LGBT family law issues, please contact Balekian Hayes, PLLC, at our Dallas office by calling  214-828-2800.