Special Issues confronting Same Sex Couples in Family Law Matters

          When the United States Supreme Court legalized same sex marriage in its 2015 decision Obergefell v. Hodges, the highest court in the land also opened the door to same sex divorces. Same sex couples divorce for the same reasons opposite sex couples do, financial disagreements, disputes as to raising their children, or incompatibility. While same sex individuals undergoing a divorce face many of the same issues as opposite sex couples, there are a number of unique issues that same sex individuals should pay attention to when considering divorce.

           One of the first questions same sex couples should ask as they prepare for a divorce is what date they were actually married. The answer to this question might seem obvious, we were married when we had the ceremony! You know, the big party with all the family and friends. But, for some same sex couples the answer is not so simple. This is because of two legal issues: retroactivity and common law marriage.


            Generally, when the Supreme Court makes decisions about the constitution, those decisions have retroactive effect. Put differently, if the Supreme Court determines that a law or policy is unconstitutional, that law is treated as if it had never existed. For same sex couples this means that when the Obergefell decision found that the right to marriage extended to same sex individuals, the Supreme Court also found that all laws that previously restricted the right of same sex couples to marry were unconstitutional. Since the laws previously banning same sex marriage were found to be void as if they had never existed, this opened the door to the possibility that some same sex couples had established a prior valid marriage. This brings us to our next topic: common law marriage.

Common Law Marriage

             Common law marriage, otherwise known as informal or nonceremonial marriage, is legally binding and bestows all of the benefits and legal rights of a traditional or ceremonial marriage. Only eight states, including Texas, recognize common law marriage. Three elements must be shown in order for a common law marriage to be recognized in Texas: the couple agreed to be married and after that agreement; they lived together in Texas as spouses; and, while living in Texas, they represented to others that they were married. While these three elements sound simple enough, they actually pose complex legal and factual issues. If you think you might have a valid common law marriage, it is best to consult with an attorney to determine if your situation fits the above three elements list above.

Why the Date of Marriage Matters

            We’ve seen that the doctrine of retroactivity, combined with Texas’s recognition of common law marriages, means that some same sex couples in Texas might have a valid marriage that predates the 2015 Obergefell decision. But why does the date of marriage matter? The date of marriage can be vital, due to the fact that Texas is a community property state.

            As you may have heard, in Texas, there is a presumption that all property owned by a married couple at the time of divorce is community property and all community property needs to be divided at the time of divorce.

            This community property presumption can be rebutted by showing that an item of property is one spouse’s separate property. Separate property is property that one spouse owned prior to marriage, inherited during marriage, or received as part of the settlement of certain legal claims. If an item of property is determined to be one spouse’s separate property that property is not divided at the time of divorce.

            A simple example will help illustrate why determining the date of marriage, and whether a couple could be considered married at common law, is so important. Imagine two individuals, Sunny and Cher. Let’s say that Sunny and Cher began dating in 2010, five years prior to Obergefell. In 2012, while on vacation, they had a marriage ceremony. While their marriage did not have legal effect, as it took place three years before federal recognition of same sex marriage, Sunny and Cher still acted as if they were married. They resided in Texas together, and they told their friends and family that they were married. In 2013 Sunny bought a home, which the couple moved into.

            In 2023, Cher files for divorce. However, Sunny claims that the couple were never married and, as such, the home Sunny purchased in 2013 should be Sunny’s property only. Cher, predictably, takes the opposite position arguing that the couple established a valid common law marriage in 2012 and that the home should be community property subject to division upon divorce. Whether or not Sunny and Cher were married at the common law becomes hugely important under these facts, as it determines whether the home Sunny purchased is subject to division in a divorce suit.

            The above example is obviously simplistic, but is designed to give some sense to the complexity faced by some same sex couples as they contemplate divorce. Ultimately, the best course is to seek the counsel of an attorney with the experience and empathy necessary to handle your unique situation.


Written by: John D. Boone