Since the United States Supreme Court’s ruling in Obergefell v. Hodges, 576 U.S. 644 (2015) in 2015, marriage equality has been legal in all 50 states. As more LGBTQ+ couples wed, new legal questions have emerged about divorce.
Because LGBTQ+ marriage and divorce have less history, the court system has been challenged to adapt. This process has been uneven, leading to frustration and uncertainty for many couples.
An experienced LGBTQ+ divorce attorney at The Law Offices of Richard C. McConathy can help you navigate this complex and ever-evolving landscape. They can advocate for your rights and interests in all aspects of your divorce, including:
- Child custody and support
- Property division
- Spousal maintenance
- Domestic violence issues
- Prenuptial and postnuptial agreements
If you are facing an LGBTQ+ divorce, it is important to have a knowledgeable and compassionate attorney on your side. They can help you understand your legal rights and options, and develop a strategy to achieve your desired outcome.
Here are some additional tips for LGBTQ+ couples going through divorce:
- Be informed about your state’s laws. LGBTQ+ divorce laws vary from state to state, so it is important to consult with an attorney to learn about the specific laws that apply to your case.
- Gather your financial documents. This will help your attorney to accurately assess your assets and debts, and to negotiate a fair property division settlement.
- Be prepared to discuss your child’s custody and support needs. If you have children, your attorney will need to understand your parenting goals and your financial situation in order to advocate for you in court.
- Be honest and transparent with your attorney. The more information your attorney has, the better they will be able to represent you.
Remember, you are not alone. There are many resources available to help you through this difficult time. With the right support, you can emerge from your divorce stronger and more resilient.
Child Custody and Child Support in LGBTQ+ Divorces
One of the biggest challenges in an LGBTQ+ divorce is when the couple has a child together, especially if the child is biologically related to one parent and is not formally adopted by the non-biological parent. In the eyes of the court, this can raise questions about child custody, even though both spouses may play equal roles in parenting.
This can be avoided through a second-parent adoption, but if you do not have time to do this before divorce, it is important to speak with a divorce attorney to discuss your options. Another potential issue in Texas divorces is the date of marriage.
If a couple lived in Texas, held themselves out as married, and had a commitment ceremony or other commitment to be married prior to 2015, and then legally married in another state when it was legal to do so or after June of 2015, one spouse may claim a common law marriage date. This can affect the official date of marriage, the length of the legal marriage, and what community property is available to be divided in the divorce.
If you are facing an LGBTQ+ divorce in Texas, it is important to have an experienced attorney on your side who can help you navigate these complex issues and protect your rights.
Here are some additional tips for LGBTQ+ couples going through divorce in Texas:
- Gather as much documentation as possible. This includes marriage certificates, birth certificates, tax returns, bank statements, and any other documents that can help to establish your financial situation and your parenting relationship with your children.
- Be prepared to discuss your child custody and support goals. Your attorney will need to understand what you are hoping to achieve in order to advocate for you in court.
- Be honest and transparent with your attorney. The more information your attorney has, the better they will be able to represent you.
- Be patient and persistent. Divorce can be a complex and time-consuming process, but it is important to remember that you are not alone. Your attorney can help you through every step of the way.
Establishing parental rights is the first step in protecting your child in the event of divorce or separation. However, LGBTQ+ parents in Texas face unique challenges in child custody cases.
Texas courts are required to decide child custody cases based on the child’s best interests. However, judges have wide discretion in determining what is in the child’s best interests. This means that LGBTQ+ parents may face discrimination in custody cases, even if they are loving and capable parents.
In general, both legal parents are entitled to joint custody of their children. However, if one parent is not a biological parent, they may have to prove that they have established a parental relationship with the child in order to obtain custody rights.
Even if a non-biological parent has established a parental relationship, the legal parent will almost always win sole custody unless the non-legal parent can prove that giving the legal parent sole custody would significantly impair the child’s physical health or emotional development.
The law is particularly unclear around child custody cases involving gender identity and sexual orientation. Parents who are gender diverse, and parents who are raising gender diverse children, can both face challenges to custody.
If you are an LGBTQ+ parent in Texas, it is important to have an experienced family law attorney who can help you protect your parental rights.
Property Division in LGBTQ+ Divorces
Texas is a community property state, which means that all property acquired during the course of a marriage is considered to be owned equally by both spouses. This includes both assets and debts.
At the time of divorce, the community property will be divided equitably (though not necessarily equally) between the spouses. This means that the court will consider a number of factors, such as the needs of each spouse, the contributions each spouse made to the marriage, and any fault in the breakup of the marriage.
The laws of property division in same-sex divorce in Texas are the same as the laws of property division in opposite-sex divorce. This means that same-sex couples can expect to have their property divided fairly and equitably during the divorce process.
If you are a partner in a same-sex marriage and you are considering divorce, it is important to contact an attorney who specializes in same-sex divorce in Texas. An attorney can help you to understand your rights and protect your interests during the divorce process.
Here are some tips for same-sex couples who are going through a divorce:
- Gather all of your financial records. This includes bank statements, credit card statements, investment statements, and tax returns.
- Make a list of all of your assets and debts. This includes your home, cars, investments, and credit card debt.
- Discuss your property division goals with your spouse or partner. Are there any particular assets or debts that you are determined to keep or get rid of?
- Consider mediation as an alternative to litigation. Mediation is a process in which a neutral third party helps the parties to reach a mutually agreeable settlement.
- If you cannot reach an agreement with your spouse or partner, you will need to file for divorce in court. An attorney can help you with this process.
In Texas, any income earned during the course of a same-sex marriage is considered community property and is subject to division upon divorce. This includes salary, wages, and income from retirement assets or other investments.
Community property also includes any property acquired during the marriage, such as a home, cars, and investments. Home equity that builds up over the years is also considered community property.
Debts incurred during the marriage are also community debts and are subject to division upon divorce.
The court will divide community property and debts equitably, but not necessarily equally. The court will consider a number of factors, such as the needs of each spouse, the contributions each spouse made to the marriage, and any fault in the breakup of the marriage.
In a same-sex divorce in Austin, Texas, community property is divided in a “just and right” manner, which means it should be equitable rather than necessarily equal. Several factors may be considered by the court to determine an equitable division, including:
- Difference in Earning Capacity: The court may consider the earning capacity of each spouse. If there’s a significant disparity in income, this could affect the division of assets and liabilities.
- Attribution of Fault: While Texas is a “no-fault” divorce state, certain circumstances like misconduct or fault in the dissolution of the marriage may influence the property division.
- Health Conditions: The health and well-being of each spouse might be considered when dividing assets and debts.
- Child Custody: Child custody arrangements can impact property division, particularly if there are adopted children from a same-sex marriage.
- Education and Employability: The court may take into account the educational background and future employability of each spouse when determining how to divide community property.
These factors are used to create an equitable division of assets and debts based on the unique circumstances of the divorcing couple. It’s essential to consult with a family law attorney in Texas for guidance specific to your situation, as divorce laws and considerations may evolve over time.
Spousal Support in LGBTQ+ Divorces
To ensure fairness and balance in same-sex divorces, courts consider a range of factors when determining spousal support, including:
- Duration of the marriage: The length of the marriage reflects the level of economic interdependence between the spouses. Longer marriages may warrant more substantial spousal support to help the economically disadvantaged spouse maintain their standard of living.
- Income and earning capacity: Courts analyze the financial resources and employment prospects of both parties, taking into account factors such as education, work experience, and market demand for their skills.
- Financial needs and obligations: The court assesses the financial needs and obligations of each spouse, including housing costs, childcare expenses, and outstanding debts. The goal is to ensure that both parties can meet their reasonable living expenses while considering their respective financial responsibilities.
- Standard of living during the marriage: The standard of living enjoyed by the couple during the marriage is another important factor. The court may strive to maintain a similar standard of living for the economically disadvantaged spouse, particularly if they sacrificed their own career or economic prospects to support the marriage.
- Age and health: The age and health of each spouse can influence their ability to support themselves financially. Courts consider factors such as employability, disability, and the potential impact of health issues on the individual’s earning capacity.
- Contributions to the marriage: The contributions made by each spouse to the marriage are evaluated. This includes both financial contributions, such as income earned and assets acquired, as well as non-financial contributions, such as child-rearing, homemaking, and support of the other spouse’s career.
In summary, courts consider a variety of factors to ensure that spousal support is fair and equitable for both parties in a same-sex divorce.
Domestic Violence in LGBTQ+ Divorces
Domestic violence is a serious issue that can impact various types of relationships, not just romantic ones. It encompasses a range of abusive behaviors that extend beyond physical violence, including:
- Intimidation: Using threats or actions to create fear or control the other person.
- Threats: Making verbal or written threats of harm, including physical harm or harm to one’s property or loved ones.
- Emotionally Abusive Behavior: Engaging in manipulative and emotionally damaging actions aimed at controlling or demeaning the victim. This can include psychological and verbal abuse.
- Harassment: Engaging in a pattern of intrusive, annoying, or threatening behavior that can lead to emotional distress.
- Stalking: Repeatedly following, tracking, or monitoring someone without their consent, leading to fear for their safety.
- False Imprisonment: Restraining someone against their will, limiting their freedom and movement.
- Child Abuse/Endangerment: Subjecting children to abusive or harmful behavior, directly or indirectly.
These various forms of domestic violence can significantly affect divorce or child custody cases. It’s crucial to seek legal assistance when dealing with domestic violence issues. If you are facing an emergency situation related to domestic violence, it’s essential to prioritize your immediate safety by contacting law enforcement, such as calling 911, and then seeking legal assistance once you are safe. A qualified attorney can help you understand your rights and guide you through the legal process to protect yourself and your family.
A domestic violence protective order (DVPO) is a court order that prohibits the abuser from contacting or coming near you or your child. This may include visiting your home, work, or any other place you frequent. DVPOs also typically prohibit the abuser from communicating with you in any way, including by phone, email, and social media. In some cases, a DVPO may also award you temporary child custody or limit child visitation.
If you are in fear of your spouse, ex, or another party with whom you share a household, you should seek a DVPO. An attorney can help you investigate your case and file a petition for a DVPO.
Prenuptial Agreements and Postnuptial Agreements in LGBTQ+ Divorces
A prenuptial agreement, also known as a prenup, is a legal contract signed by a couple before marriage. It establishes the rights and responsibilities of each spouse in the event of a divorce or separation.
Some of the issues that can be addressed in a prenuptial agreement include:
- Property division: A prenup can specify how property acquired during the marriage will be divided if the couple gets divorced or separated. This can include real estate, investments, and other assets.
- Debts: A prenup can also address how debts incurred during the marriage will be divided. This can include credit card debt, student loans, and other obligations.
- Spousal support: A prenup can establish whether or not spousal support will be awarded if the couple gets divorced or separated.
- Inheritances: A prenup can address how inheritances received by either party will be handled in case of a future divorce or separation. This can include property, investments, and other assets inherited during the marriage.
- Business ownership and assets: If you own a business, a prenup can protect your business and the assets you’ve built.
- Retirement accounts: A prenup can protect your retirement accounts and their increases in value.
- Trusts and income from trusts: If you are the beneficiary of a trust, a prenup can protect the monies you receive from your trust.
It is important to note that both parties must enter into a prenuptial agreement voluntarily, and an agreement cannot be used to establish unfair or unreasonable terms on either spouse. Each party should have an attorney review the agreement to ensure that their rights are protected.
Here are some additional things to keep in mind about prenuptial agreements:
- Prenuptial agreements are not just for wealthy couples. Anyone can benefit from having a prenup, regardless of their financial situation.
- Prenuptial agreements can be complex, so it is important to have an attorney help you draft and review the agreement.
- Prenuptial agreements can be modified or revoked after marriage, but this requires the consent of both parties.
- Prenuptial agreements are not always enforced by the courts. However, if the agreement is fair and reasonable, and both parties entered into it voluntarily, the court is likely to uphold it.
If you are considering getting a prenuptial agreement, it is important to talk to your partner about your expectations and to seek legal advice from an attorney.
A postnuptial agreement is a legal contract that a couple signs after they are married. It establishes the rights and responsibilities of each spouse in the event of a divorce or separation. The issues that can be addressed in a postnuptial agreement are the same as those in a prenuptial agreement, such as property division, debt division, spousal support, and inheritances.
Postnuptial agreements can be especially beneficial for LGBTQ+ couples. For example, LGBTQ+ couples who married before 2015 may have different legal rights and obligations than couples who married after that date. Additionally, LGBTQ+ couples may be more likely to have complex financial arrangements, such as multiple businesses or inheritances from same-sex partners.
A postnuptial agreement can help LGBTQ+ couples to:
- Protect their individual assets and income
- Avoid costly and time-consuming litigation in the event of a divorce
- Ensure that their divorce is fair and equitable
If you are an LGBTQ+ couple considering a postnuptial agreement, it is important to work with an experienced attorney who can help you draft an agreement that is tailored to your specific needs and circumstances.
Here are some special considerations for LGBTQ+ couples when negotiating a postnuptial agreement:
- Pre-marital assets: If you acquired assets before you married, you may want to consider having them classified as separate property in your postnuptial agreement. This will help to ensure that you keep those assets in the event of a divorce.
- Spousal support: LGBTQ+ couples may be more likely to have traditional gender roles in their relationship, which can impact the issue of spousal support in the event of a divorce. It is important to discuss your expectations for spousal support with your partner and to have them included in your postnuptial agreement.
- Children: LGBTQ+ couples may be more likely to have children from previous relationships or to adopt children. It is important to include provisions in your postnuptial agreement that address child custody and support.
It is also important to note that postnuptial agreements must be signed voluntarily and without any undue pressure. Each spouse should have their own attorney review the agreement before signing it.
If you are an LGBTQ+ couple considering a postnuptial agreement, I encourage you to contact an experienced attorney to discuss your options and to get help drafting an agreement that protects your rights.
LGBTQ+ Divorce Attorney in Tarrant County, TX
The Law Offices of Richard C. McConathy is a Texas-based law firm that specializes in family law for LGBTQ+ clients in Fort Worth, Arlington, Grapevine, Keller, Southlake, and other cities in Tarrant County, TX. The firm offers a variety of services, including:
- Partnership packages: These packages can help committed couples to create legal documents that protect their rights and interests, such as cohabitation agreements and powers of attorney.
- Same-sex second-parent adoption: The firm can help same-sex couples to adopt their partner’s biological children.
- Collaborative divorce: The firm can help same-sex couples to get divorced through a collaborative process, which is a more amicable and less adversarial approach to divorce.
- Litigated separation: If a same-sex couple is unable to reach an agreement on their own, the firm can represent them in court during a litigated separation.
- Transgender clients’ legal issues: The firm can help transgender clients with legal matters such as name changes and legal gender correction.
The Law Offices of Richard C. McConathy is committed to providing LGBTQ+ clients with the legal support they need to protect their families and achieve their goals. Do not wait to call (817) 422-5350 or contact us online to schedule a free consultation.