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Exact Dates Matter in an LGBT+ Divorce

 Posted on January 06, 2023 in Divorce

San Antonio, TX LGBT family lawyerSame-sex marriages are fairly new in the United States and subsequently divorces among the

LGBTQ+ community are too. Same-sex couples may come across unique circumstances if they decide to get a divorce or fight for child custody. It is best to work with an experienced LGBT family law attorney to protect your rights if you are thinking about parting ways.

When Was LGBT When Marriage Legalized?

In 2015, the United States Supreme Court legalized same-sex marriages, enabling LGBT couples to enjoy the same rights and privileges as others in their marriages nationwide. The state of Texas recognized common-law marriages for LGBT couples beginning at the same time, although the reality is that many same-sex couples were already living together in Texas. 

For those couples that lived together and presented themselves as spouses without actually getting married, the question becomes: When did the common-law marriage start? If the couple lived together before being allowed to get married, there is often uncertainty about the actual length of their marriage. But this date is very important because all of the property and debt acquired by either spouse since the common-law marriage began is considered community or marital property. This is a continually evolving area of law for LGBT couples, with a major case involving a longstanding common-law marriage having been decided just last year. Having a competent, experienced attorney who understands the law in this area is essential for such a case. 

LGBT Parents Seeking Child Custody

LGBT parents may also encounter issues related to custody during a divorce. The Texas Family Code requires courts to act in the best interest of the children when determining child custody, but judges must still follow the law. Clearly, with LGBT couples, this can get quite complicated if one or both parents are not the biological parent of a child. If a parent did not formally establish a legal relationship with the child through adoption proceedings or carefully written egg donation or surrogacy contracts, he or she may struggle to get custody of the child after a divorce. This can be especially difficult for blended families with children from previous relationships when a non-biological parent has played an essential role in raising a child for many years. 

Although parental rights of same-sex couples are not specifically laid out in the law and it is written with gender-neutral language, there is a provision called the “Presumption of Paternity” wherein a man is presumed to be the father of a child if he has lived with the child for two years and represents himself to others as the father of the child. A woman who did not give birth to a child can be determined to be the mother of a child if the woman adopted the child. 

As with straight couples, if both partners are the legal parents of a child, they will be able to enforce their parental rights, share custody, and have visitation. Child support orders will be established to ensure that both parents contribute toward the child’s needs.

Contact a San Antonio LGBT Family Law Lawyer

If you are looking to get a same-sex divorce, at Brandon Wong & Associates, we help LGBT families address a variety of issues related to divorce. A Bexar County LGBT family law attorney can help you understand what steps to take and answer any questions you may have about child custody. Call us today at 210-201-3832.


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