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Same Sex Divorce and Parenting Rights

On June 26, 2015, the historic case, Obergefell v. Hodges v. Hodges, held for the first time that the Fourteenth Amendment of the United States Constitution required the States to allow same-sex marriages and to recognize same-sex marriages performed out-of-State. However, this was far from the beginning of governmental recognition of same-sex marriage. Since the 1970s, citizens and lawmakers alike have been fighting for legal recognition of same-sex relationships. In 1993, the Hawaii Supreme Court became the first judicial body to suggest that bans on same-sex marriage might be unconstitutional. However, it was not until more than a decade later, in 2004, that the first legal same-sex marriage license in the United States was issued (in Massachusetts). While same-sex rights expanded around the nation, so too did opponents of same-sex marriage. As a reaction to growing acceptance of same-sex relationships around the nation, the 1996 Defense of Marriage Act explicitly defined “marriage” as a union between one man and one woman. Many states, including Texas, adopted various state-level analogues to the Defense of Marriage Act, while other states continued the process of recognizing same-sex unions. By 2015, approximately 70% of the population lived in a jurisdiction in which same-sex marriage was legally recognized and, by June 26 of that year, the rest of the population followed suit after the Supreme Court of the United States declared bans on same-sex marriage unconstitutional.

However, while Obergefell v. Hodges was not the beginning of recognition of same-sex rights, it was also not the end. Since 2015, judicial precedent addressing same-sex unions has exploded – answering many questions and leaving many others unanswered. While all states must recognize same-sex marriages, Obergefell v. Hodges failed to address many other legal issues inherent to same-sex unions, such as parentage (both paternity and maternity), parental rights and duties, and common-law marriage. Because there are many novel legal questions left unanswered for same-sex couples in the wake of Obergefell v. Hodges, it is imperative to seek the advice of a dedicated family-law attorney to identify any issues before entering into a same-sex gestational or surrogacy agreement, a same-sex divorce, or a same-sex child custody case.

One issue particularly relevant in Texas is the intersection of same-sex couples and common-law marriage. Texas is one of only eight states that still recognizes common-law marriage, which is particularly relevant for same-sex couples who may have held themselves out as spouses prior to Obergefell v. Hodges as a substitute for marriage and have still not obtained a formal marriage license. What happens if one party contests the existence of a common-law marriage altogether? Texas courts are split on whether Obergefell v. Hodges can be retroactively applied to common-law marriages purportedly entered into prior to 2015. While some courts have held that same-sex marriages can pre-date Obergefell v. Hodges, other courts have held that common-law marriages entered into prior to the legalization of same-sex marriage are void ab initio. The Supreme Court of Texas tangentially addressed this in the 2017 case, Pidgeon v. Turner, when it rejected a retroactive application of Obergefell v. Hodges regarding state-issued spousal benefits. However, the Supreme Court of Texas included a footnote that explicitly reserved the question of whether Obergefell v. Hodges could be retroactively applied in other contexts for a later determination. As it stands, this issue is still unresolved across the state and highlights the importance of choosing a family-law attorney experienced in same-sex domestic relations litigation, like the attorneys at McClure Law Group, before contemplating divorce where common-law marriage can be alleged and how best to defend against a spouse contesting the existence of a common-law marriage altogether.

Whether male or female, same-sex couples wanting to raise a child face unique issues, one of which is whether to have a gestational surrogate carry a child to term or whether (if the spouses are both female) one of the spouses will carry the child. In any case, these both necessitate the involvement of third parties, whether they be sperm donors, egg donors, or surrogates. Many people are unaware, however, that Texas places specific restrictions on the validity of gestational or surrogacy agreements, depending on the type of insemination used. While Texas allows couples to enter into surrogate agreements whereby a gestational surrogate receives an egg donation and a sperm donation (referred to as “gestational surrogacy”), Texas explicitly prohibits parties from entering into contracts whereby a surrogate will use her own egg (referred to as “traditional surrogacy”). This can present issues for same-sex couples wishing to use a surrogate to help start their family. Before entering into such a contract, it is important to meet with one of McClure Law Group’s experienced family-law attorneys to fully understand the nuances of Texas surrogate and gestational agreement law and what obligations it imposes on you.

Same-sex couples are also uniquely affected by cohabitation agreements, which present a plethora of legal issues in Texas. In the pre-Obergefell v. Hodges years, cohabitation agreements were one of several popular ways for same-sex couples to gain recognition in the eyes of the law. Many same-sex relationships may still be under the requirements set forth in a cohabitation agreement and, if the couple separates, one or both could attempt to initiate litigation based on the cohabitation agreement. However, same-sex couples operating under a cohabitation agreement need to be aware of the issues enforcing these agreements, which are often held to be unenforceable on public policy grounds. Whether contemplating entering into a cohabitation agreement or questioning the enforceability of your existing cohabitation agreement, a family-law attorney at McClure Law Group can help you navigate the ins and outs of Texas same-sex cohabitation agreement law.

There are innumerable other issues that affect same-sex couples uniquely, from divorces and property divisions, to child custody suits and parental rights. It is crucial to understand that not all attorneys are well versed on the intricacies of the law as it applies to same-sex unions. Divorce and child custody suits are emotionally taxing enough, and sometimes particularly so when you have to navigate the complexities of Texas same-sex laws. By retaining one of the experienced family-law attorneys at McClure Law Group, you can feel confident knowing that your family and fortune are protected and that you understand your rights under the law. We are based in Dallas with a Collin County office in Plano (by appointment), and we often assist parties in Dallas, Garland, Frisco, Irving, Richardson, McKinney, Fort Worth, and Rockwall. We also represent individuals in family law disputes in cities throughout Dallas, Denton, Grayson, Tarrant, Collin, and Rockwall Counties. You can reach us at 214.692.8200 or through our online form to schedule a meeting.

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