Same-Sex Divorce

On June 26, 2015, the United States Supreme Court decided Obergefell v. Hodges in which the Court held that “same-sex couples may exercise the fundamental right to marry,” and the state laws challenged in that case were “invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” 576 U.S. 644 (2015). Following the Obergefell decision, the Texas laws limiting marriage to heterosexual unions are now unconstitutional. Everyone assumes that same-sex couples therefore have the right to get divorced in Texas, but there are no specific post-Obergefell cases that explicitly say so.

Obergefell v. Hodges required all states to issue marriage licenses to same-sex couples. In December 2022, the federal Respect for Marriage Act became law, requiring all states to recognize valid same-sex marriages that were performed in another state.

The U.S. Supreme Court in Pavan v. Smith, 582 U.S. 563 (2017) recognized that spouses in same-sex marriages are also entitled to equal rights when it comes to children born of the marriage. The Court found that Arkansas’ refusal to place the names of two mothers on a child’s birth certificate “’denied married same-sex couples access to the ’constellation of benefits that the Stat[e] ha[s] linked to marriage.’…”

The Supreme Court’s 2022 decision in Dobbs v. Jackson—which overturned Roe v. Wade—raised fears that other rights, including the freedom to marry, could be next. In that case, Justice Clarence Thomas explicitly called for reconsidering past rulings, including Obergefell. Justice Samuel Alito also has repeatedly called for Obergefell to be reconsidered. It seems clear that if the reasoning relied on in Dobbs is applied to a re-assessment of Obergefell, that Obergefell would be reversed. If that ever happens, the right to same-sex marriage would be treated like the right to have an abortion and left up to the individual states. If Obergefell were ever overturned, couples could still marry in many states, and their marriages would continue to be fully recognized nationwide thanks to the Respect for Marriage Act. There are currently no pending cases before the U.S. Supreme Court that would bring this issue back to the high court, but that could of course change in the future.

So, same-sex couples are treated like any other divorcing spouses in Texas if their ceremonial marriage or informal marriage (also called a “common law” marriage) occurred after June 26, 2015.

However, there is some uncertainty about same-sex marriages that occurred prior to the Obergefell opinion, particularly informal marriages. The Supreme Court in Obergefell did not specifically rule that its opinion was retroactive (even though that is generally the case for constitutional rulings). Most courts have held that it was retroactive, but in one narrow situation, the Texas Supreme Court ruled Obergefell would not be applied retroactively to state-issued spousal benefits (Pidgeon v. Turner). Click here to read an extremely detailed analysis of this issue from the 2026 Yale Law Journal.

Same-sex couples who were ceremonially married before June 26, 2015 or who allege an informal (common-law) marriage started before that date must discuss the legal uncertainties with their attorney before even filing a divorce case in Texas. The advice a lawyer gives in such a situation may depend on the county and judge involved and certainly will depend on the most recent Supreme Court developments on this topic.

The federal magistrate in the 2016 Ranolls v. Dewling decision thoroughly reviewed the decisions on when Supreme Court cases are applied retroactively and concluded that an informal marriage that occurred prior to 2015 was a valid marriage in Texas. Click here to read that decision.

Lane v. McCormick, 14-19-00624-CV (Tex. App. – Houston 14th Mar 15, 2022) – examined a claim of common law marriage between two men who lived together pre-Obergefell. Evidence supported the jury’s finding there was no informal marriage. Neither side argued that pre-Obergefell behavior could not constitute an informal marriage between a same-sex couple.

Some important legal questions remain unanswered for same-sex couples, including:

• How is an informal marriage proved if the “agreement to be married” occurred prior to 2015 or if the “living together as a married couple” occurred in a place or time when same-sex marriage was not legal? Obergefell addressed the issuance of marriage licenses, but not “common law” marriages.
• In Texas, a spouse generally is not eligible for spousal maintenance (post-divorce alimony) unless they have been married for 10 years. For same-sex couples formally married after 2015, that should be no problem. However, for those married prior to the Obergefell decision, this remains an open question.
• The date of marriage is important because generally property acquired after that date is treated as community. It is vital to determine when a couple was married.

The issue that often arises in child custody cases between a same-sex couple is called “standing” – or who has the legal right to sue for custody or visitation? In Texas, a biological or adoptive parent clearly has standing to ask for custody of a child. This means that a biological parent or an adoptive parent can certainly sue for custody in Texas. However, Texas law fails to account for the ways in which same-sex spouses start and raise their families. Texas has not enacted any new laws regarding child custody for same-sex parents since the Supreme Court’s decision in Obergefell. This can create uncertainty for a same-sex couple if one spouse has not adopted the child because of this issue of “standing.”

In the case called In re Interest of A.E., No. 09-16-00019-CV (Tex. App. -Beaumont – Apr 27, 2017) – two women married, one conceived by artificial means, and the couple separated before the child was born. The Court of Appeals ruled that the marriage did not confer standing on the non-biological parent to seek conservatorship or visitation. So, the wife who had not given birth or adopted the child, could not seek custody. On the other hand, a more recent case in 2022, In re Interest of D.A.A.-B., 657 S.W.3d 549 (Tex. App.- El Paso- 2022) – reached the exact opposite result in the same situation. Treto v. Treto, 622 S.W.3d 397, 401–02 (Tex. App.–Corpus Christi–Edinburg 2020, no pet.) also held that marriage conferred standing on a non-gestational female spouse as to a child born via artificial insemination during the marriage.

A spouse in a same-sex divorce facing a dispute over child custody and visitation must hire a lawyer familiar with this unique legal issue of standing. “Standing” determines whether a person even has a legal right to file a claim for custody or visitation. For example, if Bob and Tom are married and only Bob had adopted the child, then Tom may not be able to sue for custody or visitation. However, Texas law does allow a non-parent who has had exclusive control and possession of a child for six months or more to sue for custody. This particular reason for legal standing would not apply to a child who has lived in the home with both spouses. Moreover, the law gives the child’s “parent” a strong advantage over a non-parent. This is why legally it is so important for the court to consider a same-sex spouse to be the child’s parent. If the custody fight is between two parents, the parties are competing on a level playing field. A gay or lesbian spouse may feel like a child’s parent and the child may call them “daddy” or “mommy,” but unless she gave birth to the child or he or she adopted the child, there is no legal right of parentage and a suit for custody or visitation may fail.