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What You Need to Know About Same-Sex Divorce and Common Law Marriage and Divorce in Texas

Kristen A. Algert | June 7, 2022

In Obergefell v. Hodges, 576 U.S. 644 (2015), the U.S. Supreme Court declared unconstitutional the remaining provision of the Defense of Marriage Act holding there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character and that same-sex couples may exercise the fundamental right to marry in all states. The Supreme Court held that prohibiting same-sex marriage violated both the Equal Protection clause and the Due Process clause of the constitution.

Why is the agreed “date of marriage” important for same-sex divorce in Texas?

Just like their straight married counterparts, same-sex married couples must seek a divorce to dissolve their marriage. One of the first tasks assigned to a divorcing couple is to identify all assets and liabilities accumulated “during the marriage” so that ultimately the marital estate can be identified, quantified, and divided in the divorce. The “date of marriage” is the beginning point for this task. All assets owned by a spouse prior to the date of marriage are that spouse’s separate property and cannot be divided by the divorce court; assets acquired after the date of marriage are generally community property and can be divided by the divorce court.

This is where confusion arises, at least in Texas, as some same-sex married couples find out that they disagree, sometimes vehemently, on their date of marriage.  And the financial consequences can be substantial.

How is it possible to disagree about the date of marriage?

Nathan and Christopher fell in love while attending college in Texas in the 1980’s. They wanted to spend the rest of their lives together so they invited family and friends to a commitment ceremony where they exchanged vows and rings, took photographs, and professed their life-long commitment to each other. The date was June 15, 1985. Nathan and Christopher graduated from college, continued to live together in Texas, purchased property in their joint names, combined their salaries in joint accounts, and even changed their legal names to share the same last name. After Obergefell, Nathan and Christopher were thrilled they could legally marry. They obtained a marriage license, hired an officiant, and again invited family and friends to witness vows and exchange of rings. The date was June 15, 2016. 

What Nathan and Christopher did not know until Nathan filed for divorce in 2022, was that Texas law provides two ways to enter into a valid marriage:  through a ceremonial marriage or through an informal marriage. A ceremonial marriage is what Nathan and Christopher did on June 15, 2016. 

How is a common-law marriage established in Texas?

An informal, or common-law marriage, can be established in one of two ways. First, a party can present evidence that the parties filed a declaration of informal marriage with the county clerk.  Nathan and Christopher did not do this and could not have accomplished this in Texas pre-Obergefell.  Second, a party can present evidence of an informal, or common-law marriage, by establishing the parties: (1) agreed to be married; (2) lived together in Texas as spouses after the agreement; and (3) represented to others in Texas they were married. Christopher believes that he and Nathan created an informal marriage beginning June 15, 1985, when they had their commitment ceremony. Nathan objects to this because same-sex couples could not legally marry prior to Obergefell and he and Christopher managed their finances and property under the assumption that they did not have the legal rights and duties enjoyed by opposite sex spouses. How can you intend to be married if you cannot legally marry?

What Nathan and Christopher also learned from their divorce lawyers is that although the U.S. Supreme Court did not opine on the retroactive effects of its holding in Obergefell, the Supreme Court has recognized a general rule of retroactive effect for its constitutional decisions. In both civil and criminal cases, unconstitutional laws and rules are void from inception, as if those laws never existed. Federal Courts in Texas, and Courts in other States that permit common-law marriage have applied Obergefell retroactively which means whether Nathan and Christopher knew it, they might have become informally married on June 15, 1985.  The spouse alleging common-law marriage has the burden to plead and prove its existence; the existence of a common-law marriage is based on all of the facts relevant to the three elements necessary to create a common-law marriage.

What happens if the couple disagrees on the “date of marriage?”

The financial impact of the date of marriage can be substantial. If Christopher is correct and the date of marriage is June 15, 1985, the net value of the parties’ community estate is $15 million.  If Nathan is correct and the date of marriage is June 15, 2016, the parties’ community estate is $3.5 million with most of the other assets on hand belonging to Nathan’s separate estate. In addition, if the marriage is ten years or longer, Christopher will be able to collect social security benefits based on Nathan’s higher income; if the marriage is less than ten years, Christopher will only be able to collect social security based on his earnings record.

The above fact-scenario, along with many variations, is repeatedly coming up in our divorce work with same-sex married couples. The “date of marriage” issue can be contentious and expensive to resolve. 

And less common, but still possible, is that this issue is raised in the context of the death of a spouse. Currently, cases exist where a surviving spouse or the family of the deceased spouse allege a common-law marriage in order to define the community estate differently than if the date of a ceremonial marriage were used.

What can same-sex couples do proactively to avoid costly litigation in divorce?

Proactive same-sex married couples who want to avoid a Nathan/Christopher scenario or who want to clear-up any possible ambiguity should consider entering into a written agreement identifying their agreed upon date of marriage. This could be accomplished with a Marital Property Agreement/Partition or Exchange Agreement (agreement between spouses defining their separate property estates and the community estate) whereby spouses, while happily married, specify when they were married.  Another possibility is for a couple to consult with their probate/trust/estate lawyers. When creating their estate plan, they may be able to express their shared view on the date of their marriage. At a minimum, a couple would benefit from having a conversation about this now versus in the event of divorce.  At this time, we do not know if an agreement on date of marriage, prior to any controversy existing, would be enforceable by a court.  At the very least, a written agreement would provide some evidence of what a couple believed at the time the agreement was reached.

Same-sex, married couples who are contemplating divorce who wish to avoid the cost of litigating the date of marriage issue also should consider entering into a Collaborative Divorce process whereby the parties commit not to go to court to resolve this issue and to negotiate in good faith an outcome acceptable to both parties.

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Kris Algert is one of the most experienced Collaborative Family Lawyers in Austin and has been named Best Lawyers “Lawyer of the Year” for Collaborative Law in the Austin area in 2013, 2016, 2018, and 2020. She is a Master Credentialed Collaborative Professional by Collaborative Divorce Texas, is Board Certified in Family Law by the Texas Board of Legal Specialization, and is known for her respectful, constructive problem-solving approach to helping clients move forward with confidence after divorce.

To find the right solution for you, please contact Kris Algert at 512-454-8791.

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