Same-Sex Divorce in Texas — LGBTQ+ Family Law After Obergefell

Texas same-sex marriage and divorce after Obergefell

The U.S. Supreme Court's decision in Obergefell v. Hodges (2015) requires every state to recognize same-sex marriages on equal terms. Texas has since applied its family law neutrally — the same-sex divorce process in Dallas County proceeds under the same Original Petition for Divorce, 60-day waiting period, and Chapter 7 property division as any other divorce.

Section 6.001 of the Texas Family Code is the no-fault ground of choice; fault grounds (§§6.002-6.007) are also available. Community-property division under §7.001 applies regardless of the spouses' genders, and courts must divide the estate in a just-and-right manner considering fault, disparity of income, and the other statutory factors.

Property predating 2015 — the backdating question

The most-litigated wrinkle in Texas same-sex divorces is what to do with assets acquired before 2015. Some Texas courts have applied the retroactivity of Obergefell to treat the couple as married from an earlier date (e.g., the date of a valid out-of-state marriage or an established common-law marriage under §2.401). Others treat community accrual as beginning only at the 2015 recognition or the ceremony date.

The stakes are real: houses, retirement accounts, and business interests acquired 'together' in 2005 might be community, separate, or a hybrid depending on how the court characterizes them. Documenting the couple's intent and financial arrangements from the earliest years pays dividends when characterization is litigated.

Parentage — Pavan v. Smith and the marital presumption

In Pavan v. Smith (2017), the U.S. Supreme Court confirmed that same-sex couples must be treated equally under state parentage laws — including presumptions of parenthood arising out of marriage. In Texas, that generally means the non-biological spouse in a same-sex marriage is presumed to be the child's second parent under Texas Family Code §160.204.

Even with the presumption, we recommend that non-biological parents obtain a court order confirming parentage — either a second-parent adoption under Chapter 162 or a parentage judgment under Chapter 160 — because presumptions can be rebutted, but a final judgment is entitled to full faith and credit in every state.

Coordinating with the Mexican Consulate

Same-sex marriage is legal throughout Mexico. For binational LGBTQ+ couples, Isabela Garcia's PALE role at the Mexican Consulate of Dallas simplifies apostille, translation, and cross-border recognition — including cases where a Mexican partner needs to be added to a Texas child's parentage judgment or where retirement/pension benefits must be enforced in Mexico.