Same-Sex Couples in Texas: What Should You Consider?

The path towards same-sex equality reached a monumental peak in 2015 when the landmark United States Supreme Court case, Obergefell v. Hodges, legalized same-sex marriage nationwide. While the Obergefell decision provided many same-sex couples with long-awaited marital rights and protections, not all same-sex couples in Texas rushed to the altar.

Today, family lawyers nationwide are seeing more couples avoid weddings altogether and opt for cohabitation agreements, domestic partnerships, and other formal relationship arrangements. There are many options now available for same-sex couples in Texas. While some same-sex couples found success in legally protecting their interests before Obergefell through contractual arrangements, those avenues may not be the right fit for all couples today. If you are in a same-sex relationship in Texas, the following article will hopefully enlighten you on what you should consider when thinking about the next step in your relationship. Plan today to save future you and your relationship time, money, and even a headache or two later by understanding and protecting your legal rights.

What options are available to same-sex couples in Texas?

In Texas, same-sex couples have the right to the same avenues and legal procedures as heterosexual couples. There is the “ceremonial marriage,” in which a couple obtains a marriage license obtained by a local government office and holds a wedding ceremony led by an officiant. However, a ceremonial marriage is not the only way Texan couples can protect themselves and formalize their relationship under the law. Other avenues include:

• An informal or “common-law” marriage
• Domestic Partnership agreements
• Non-marital Cohabitation agreements

It is important to seek legal counsel to assist with legal forms and ensure that all proper legal procedures are followed to protect your legal rights.

Each avenue provides different benefits and rights that may become critical in the event of a separation, divorce, or the death of a spouse. While Texas law provides same-sex and heterosexual couples the same legal protections and procedures in family court, there are considerations specific to same-sex couples that should be considered.

What should same-sex couples know about Texas common-law marriage?

In Texas, a “common-law” or informal marriage is a legally recognized way for couples to marry without obtaining a marriage license or holding a marriage ceremony. The couple, however, must meet certain elements to prove they are in a valid common-law marriage. This includes demonstrating that:

1. Both people agreed to be married;
2. Both people publicly represented themselves as a married couple; and
3. Both people lived together as a married couple in Texas.

Tex. Fam. Code. Section 2.401(a)(2). These elements will need to be present at the same time to establish a valid common-law marriage. Contrary to popular belief, there is no minimum amount of time a couple must have lived together to establish this kind of marriage. It could be six months or seven years, so long as the couple can demonstrate that during that period, they cohabitated and “held” themselves out to be a married couple.

While the time and duration a couple cohabitates together is not a determinative factor in Texas when establishing a common-law marriage, time may matter for certain spousal benefits. For example, the length of a legal marriage may affect access to a spouse’s Social Security benefits. That time requirement will look different depending on whether you are a current spouse, an ex-spouse, or a widow or widower. Additionally, in a divorce, a Texas family law court may consider the length of a marriage critically when deciding alimony or property distributions. Lastly, the length of a marriage, and the time in which a court determines the parties’ informal marriage began, may impact the division of community property formed after the informal marriage start date.

For same-sex couples, specifying the start date for a common-law marriage may be especially difficult. Homophobia and discrimination may prevent same-sex couples from “holding” themselves out as a married couple. This is as true for couples today as it was before the Obergefell decision. Timing presents an additional legal vulnerability for couples who were together long before Obergefell. While these couples may now be in valid common-law marriages, the length of the marriage may not be accurate and leave out the time the couple was together before Obergefell. This could leave couples in a legally vulnerable area. As explained above, timing can be crucial for access to spousal benefits, especially in the event of a divorce or the death of a spouse.

What about domestic partnership agreements?

Before the legalization of same-sex marriage in 2015, the majority of registered domestic partnerships across the nation were often from same-sex couples. Historically, this partnership was often the only form in which same-sex couples could receive some “spousal” benefits. While domestic partnership agreements are seen less and less today, some couples still turn to this legal avenue.

Typically, a domestic partnership is formed through an agreement between a couple who is cohabitating but has no intention to marry. The agreement may outline how the couple shares furniture or income and possibly how property will be distributed if the couple separates. However, unlike ceremonial or common-law marriages, Texas and the federal government do not recognize domestic partnerships nor does the state or the federal government provide these couples with traditional marriage benefits.

Despite the lack of benefits, some counties across Texas offer and recognize domestic partnerships. These counties will accept filings of domestic partnership agreements and maintain a record of them likely in their county clerk’s office. Additionally, individuals may need to submit a specific form to the county clerk’s office within a designated timeframe after the end of the relationship to dissolve the partnership. However, while these agreements are permissible in some areas of Texas, several factors may affect the weight your domestic partnership agreement can carry. These factors may include where the couple is located or even one of the parties’ employers. For instance, some employers provide bereavement leave in the event one’s domestic partner dies. Other employers can provide limited insurance benefits to one’s domestic partner.

The benefits of a domestic partnership agreement are not standardized across the state and will need to be assessed on a case-by-case basis.

And what about nonmarital cohabitation agreements? 

Like domestic partnership agreements, nonmarital cohabitation agreements are not recognized federally or statewide for marriage purposes. However, cohabitation agreements are effectively contracts between two parties who hope to outline certain aspects of their cohabitation relationship. Unlike domestic partnerships, cohabitation agreements are becoming more popular. With more and more couples living together for an extended length of time without first getting married, the possibility increases that either party is acquiring assets and interests they may want to protect in the event of a breakup, especially when it comes to jointly owned property.

Much like a “prenup,” or premarital agreement, a cohabitation agreement allows couples to outline and detail specific provisions relating to personal assets, property distribution, and even day-to-day expectations of household chores. Keep in mind that cohabitation agreement provisions relating to children is generally discouraged and specific provisions related to child support, periods of possession and access, and conservatorship rights, duties, and powers may not be included within a cohabitation agreement. However, unlike a “prenup,” this cohabitation agreement is not always the precursor to a marriage. Instead, these agreements are frequently used by couples who intend never to marry, whether through a ceremonial or common-law marriage, and often contains language preventing actions that would otherwise appear to be “holding out” as married from being considered as such. In other words, cohabitation agreements may be used by couples who want to prevent accidentally becoming informally married later on by restricting the creation of a marriage to ceremonial marriage only.

While cohabitation agreements may seem taboo or make one feel like you are “planning” for a potential separation, cohabitation agreements provide far more benefit than a well-thought-out emergency escape plan. These agreements allow couples to sit down and discuss what is essential to each individual, from finances to household responsibilities. The agreements can be boilerplate and generic or specific and detailed to include future earning potential and even the distribution of cryptocurrencies or bonuses. In this line of work, we often hear spouses say they had “no idea” who they were marrying as they learn more about their spouse through the divorce process. Sometimes, that shocked feeling is a symptom of years of poor communication between the spouses. A cohabitation agreement may allow couples to set a strong foundation built on trust and communication instead as they begin sharing a life and a home and allow for marriage at a later date when they are ready.

Explore these options with the Trey Yates Law Firm

Building a relationship meant to last a lifetime is often difficult. Navigating same sex divorce can be particularly challenging, making it crucial to seek legal counsel. Planning the “right” next step for any couple can be even more challenging. Weighing your options can be easier with the advice and guidance of someone with experience. Speaking with an experienced family law attorney can be helpful for making these difficult and serious decisions, especially with an attorney with decades of experience working with same-sex couples in Texas. Reach out to our team today!