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Common law, same-sex marriages under Texas law

Long before the legality of same-sex marriages became the law of the land here in the United States, heterosexual and same-sex couples had been shacking up and sharing their lives just as if they had walked down the aisle together. At some point after same-sex marriage was legalized, many of these couples wed.

As such, some are now divorcing, which presents some interesting questions regarding the dates they use when filing and answering petitions for divorce.

What is the date of the marriage?

There is a strong chance that if the gay couple lived together in a common law marriage prior to getting married — even during the period when same-sex marriages were not legal at either the state or federal levels — the date they must use on divorce documents would be the date when they first began cohabitating as a married couple.

The two spouses must also have been otherwise free to marry. That means that if either one was still legally wed to another partner, no common law marriage could exist until the first union ended or was terminated by divorce or annulment.

State court ruling set precedent

Two years ago, a South Carolina family law judge issued a ruling in a same-sex divorce case where the U.S. Supreme Court opinion Obergefell v. Hodges was applied retroactively.

This ruling can set a legal precedent for cases in states that recognize common law marriages. It should also be noted that if a heterosexual or same-sex couple met the legal definition of common law married in a state where those marriages are recognized and then moved to a state without common law marriage recognition, their common law marital status nonetheless prevails.

Confused yet?

That's understandable, as state divorce and marriage laws are still in flux as they are modified to accommodate the fallout from the Obergefell v. Hodges case.

Texas divorce and marital laws can be tricky to interpret correctly, especially in cases where there is no clear date of marriage. This is where a Houston family law attorney can prove invaluable. Your attorney will gather facts about the circumstances surrounding the start of your union and work to get you the best possible property settlement when it concludes.

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