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Texas Divorce and Prenuptial Agreement

5005 Riverway Drive, Suite 450 • Houston, Texas 77056

Phone: 713-877-8800 • Fax: 713-877-1229

Texas Supreme Court Pondering Fate of Same Sex Divorce

We posted on Monday about the recent arguments that judges on Maryland’s highest court heard regarding same sex divorces. The case concerns same sex couples that lawfully marry in one state, but then seek a divorce in a state that does not recognize same sex marriages. The legal discussion going on in Maryland (and several other states) is important for Texas residents because similar cases are currently pending before our Supreme Court. Last summer, Wyoming’s Supreme Court ruled that same sex couples in this situation are in fact permitted to divorce in Wyoming state courts.

The two Texas cases involve two men who married in Massachusetts (the case is In the Matter of the Marriage of J.B. and H.B.) and two women who also married in Massachusetts (the case is State of Texas v. Angelique Naylor). Texas’s Attorney General intervened in the Naylor case after a judge initially granted the divorce. Both cases are pending before the Texas Supreme Court with arguments expected to be heard sometime this spring or summer, though no definitive timeline has been set.

While same sex couples in Texas await the decision, there is action they can take if they wish to protect their property rights in the event of a break up. Same sex couples can rely on cohabitation agreements to bridge the current gap in same sex divorce law. Cohabitation agreements function as a sort of prenuptial agreement for unmarried couples, either same or different sex. Cohabitation agreements can set forth terms similar to what divorcing couples have in a divorce settlement. The partners can spell out how they would like to split their property or handle jointly owned property.

A more difficult area is deciding how a same sex couple will handle child support and child custody. While one partner may be the legal guardian of the child and enjoy all the rights that accompany this status, the other may not have any rights at all. If you have questions in this area of the law, we recommend consulting a Houston divorce attorney.

For those in a same sex relationship or cohabitating with a long-term partner, what legal concerns have you had?

John K. Grubb & Associates, P.C. – Houston divorce lawyers

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