For same sex couples who had waited several years to several decades for the momentous occasion, June 26, 2015 marked a long awaited date.
The Supreme Court of the United States (SCOTUS) handed down its decision in a landmark case, ruling that the right to marry is fundamental for all Americans.
Under the US Constitution’s Due Process Clause and Equal Protection Clause, same sex couples can legally unite in marriage and possess the same protections as couples of the opposite sex.
Yet, even as some same-sex spouses continue to enjoy marital bliss, others may reach the point of considering divorce. If you’re one of them, you’re probably wondering how the laws apply to same sex divorce Austin.
While you should rely on a knowledgeable Austin divorce lawyer for advice on your specific situation, you may find it helpful to review five key points to note about the process.
1. Only official divorce proceedings will legally end your same sex marriage.
Now that you can legally marry someone of the same sex, you’ll have to go through the same process as other couples when you want to end your marriage.
This is true whether you married in a different state or here in Texas. The reason that it’s important to go through the full, legal divorce process is that, until you do, you and your spouse are still married – and still accruing property together.
Texas is a community property state, so most assets acquired during the marriage will be divided upon divorce. The exceptions are gifts and inheritances that one spouse receives. Property is only separate if you owned it before the wedding date or after your divorce is finalized.
2. Community property is divided according to fairness.
Under theTexas’ statute on Award of Marital Property, all marital assets will be divided in the interests of what’s “just and right.” This statutory language has been interpreted to mean that property will be distributed according to what is fair to each party and the children that they share. There are some special rules in the statute with respect to property that either spouse acquired while domiciled in another state.
3. There’s no absolute right to alimony.
Also known as spousal support, Texas divorce courts will only order alimony under certain conditions – even in same sex marriages. Generally, the standard is that you must be married for at least 10 years and the amount of support must be reasonable under the circumstances.
Alimony is usually awarded when one spouse would have difficulty finding employment, perhaps because he or she stayed home with minor children. Spousal support is intended to provide financial backing while that person gains education or training to become self-sufficient. Therefore, it’s not a permanent arrangement in most cases.
In divorce, same sex couples will have to address child custody, visitation, and support – just as couples of the opposite sex. These determinations are based upon the best interests of the child, a standard that was first established by case precedent instead of a statute. It incorporates nine factors, including:
- The emotional and physical needs of the child, currently and in future years;
- The wishes of the child;
- The parenting capabilities of the parent seeking custody;
- The parents’ plan for raising the child; and,
- Many others.
In addition, the safety of the child is paramount. If there’s any threat to his or her well-being, that will affect custody and visitation arrangements.
Texas law encourages couples to negotiate a compromise on the key areas of divorce, including asset division, alimony, and issues related to minor children.
If you can come to an agreement on how to divvy up property and the details of alimony, a judge is not likely to disturb it. This is true whether you come to an agreement through attorneys or during the mediation process.
With regards to children, the best interests of the child are still the primary factor. However, a court will review the agreement and – if it meets the legal standard – the judge will enter an appropriate order.
Contact an Austin Divorce Attorney to Discuss Your Circumstances
Though it’s important to note these five points about same sex divorce in Austin, there are many other legal factors that could affect your case. To learn more about the process, please contact the Law Office of Ben Carrasco, PLLC by calling (512) 320-9126 or visiting our website. We can schedule a consultation to review your situation and determine strategies to protect your interests throughout divorce proceedings.