In many regards, same-sex marriages are essentially the same as heterosexual ones. They involve two people pledging to support one another and share their lives and resources. They can also end in divorce, same as heterosexual marriages.
Same-sex marriage became legal in Texas through a Supreme Court ruling less than a decade ago. The relative newness of LGBT+ marriages means that the family courts in Texas have yet to fully adapt to the nuances of same-sex marriages and divorces.
LGBT+ couples who have children may have unique custody issues. Property division can also become more complex, including separate property and reimbursement claims, than in heterosexual relationships – especially when the parties were in long-term, committed relationships for years prior to the legalization of same-sex marriage.
It can be harder to determine what is community property
Establishing what is community and what is separate property can be a difficult and expensive process. Marital agreements and financial records will largely dictate what assets are subject to division and that process is much easier if the parties have clear and complete records.
While assets accumulated during the marriage are presumed by the Court to be community property, assets acquired during the marriage with funds owned prior to the marriage, together with assets owned prior to the marriage and inheritance would be separate property, provided that the person who claims them as separate property can trace their existence from inception to the current day. Tracing such assets can be very challenging and especially in longer term marriages.
The separation between community property and separate property is not generally as clear-cut as one would like to believe. It is further complicated by the recent changes in the law to recognize LGBT+ marriages, because the couple may have been in a long-term relationship prior to the Obergefell v. Hodges ruling, and essentially shared their lives like a married couple without the benefit of legal marriage under Texas law. The issue then – “is the property acquired when a couple shared finances and lived together but could not legally marry be subject to division?”
Financial and personal records can help clarify your property rights
Anything from letters and anniversary cards to older social media posts could help prove a claim that the couple treated the relationship like a marriage even before you could legally marry in Texas. Additionally, financial records will be very important in proving how and when certain assets were acquired and with what funds.
Familiarizing yourself with Texas law will better prepare you for a change to your marital status and its associated financial impact.