For many same-sex couples, when your marriage began – on paper or in practice – can have life-changing legal and financial consequences.
When it comes to divorce, few details carry as much weight as the official date of marriage – especially for same-sex couples in Texas. This date can significantly affect how the court views your property division and spousal maintenance eligibility in the event of a same-sex divorce in Texas, given that Texas is a community property state.
Since same-sex marriage became legal in Texas in 2015 following the U.S. Supreme Court’s Obergefell v. Hodges decision, many couples have wondered: Does the time we spent together before 2015 count toward our marriage in the eyes of the law?
The answer: it can – under certain circumstances.
Two Types of Marriage in Texas: Formal and Informal (Common Law)
Texas recognizes two types of marriage, both of which apply to same-sex and heterosexual couples:
- Formal (Ceremonial) Marriage: A legal marriage that includes a marriage license and ceremony.
- Informal (Common Law) Marriage: A legal marriage based on cohabitation and representation of being spouses without a ceremony or license.
Texas allows parties in an informal marriage to hold, as their legal marriage date, the earliest date at which the parties satisfy all the requirements of an informal marriage.
Under the Texas Family Code, an informal or “common law” marriage may be proved with evidence that:
- A declaration of marriage has been signed; or
- The parties: (1) agreed to be married, (2) after the agreement, they cohabitated (lived) together in Texas as a married couple, and (3) represented themselves to others in Texas to be married.
All three conditions must occur simultaneously, but there’s no required length of time for cohabitation.
Once the common law marriage is legally established and in existence, it is the same as a marriage that was established through a formal method with a wedding, ceremony, or license. That means the same legal rights, responsibilities, and entitlements in the event of divorce.
Can Common Law Marriage Begin Before 2015?
Yes. Courts in Texas and other states that recognize common law marriage have applied the Obergefell decision retroactively for in the instance of same sex marriages. That means if a same-sex couple met the legal criteria for informal marriage before 2015, that earlier date may be recognized as their official date of marriage even when they were formally married in 2015 or later.
This distinction is crucial during divorce proceedings – especially when dividing property and assets or establishing eligibility for spousal support.
Why the Date of Marriage Affects Property Division
In a Texas divorce, couples must identify all assets and liabilities acquired during the marriage. Assets owned before the marriage are typically considered separate property, while those acquired after are considered community property and are subject to division by the court as part of the marital estate.
The date of marriage is always critical in the event of divorce, and can be especially relevant for same-sex couples who had a commitment ceremony before 2015 and presented themselves as married, but then legally married later on once the law recognized their marriage. In the case of a same-sex divorce in Texas, one partner might assert that they entered into a common law marriage before their official marriage date, which could shift dramatically how assets and property are divided.
Some same-sex married couples find out that they disagree, sometimes vehemently, on their date of marriage due to the ambiguity of same-sex marriage recognition and same-sex marriage laws over the last decade. And the financial consequences can be substantial.
Consider this example:
Hypothetically, imagine that Sam and Pat met, fell in love, and had a commitment ceremony on July 1, 1999. They began their lives together as a couple. They had joint bank accounts, purchased property together, and Sam started a business. They built a life with savings, investments, and retirement. All the same things a married couple would do.
Now fast forward to June of 2015, and Sam and Pat are now allowed to marry in Texas legally with a formal ceremony. They hold the wedding of their dreams on October 1, 2015. They continue to build their lives together. Sam’s business continues to grow, or maybe it even gets sold for a substantial profit. Their retirement, investment, and savings accounts continue to grow. Their marriage appears strong. Until one day, it’s not, and Pat goes to file for divorce.
Sam claims their marriage began in 2015. Pat argues it started in 1999 under common law.
If the court uses 2015 as the official marriage date:
- The community estate is valued at $3.5 million.
- Sam retains $14.2 million in separate property, while Pat retains $1.2 million.
But if the court agrees to use the 1999 date:
- The community estate increases to $18.9 million.
- Each spouse could receive $9.45 million, assuming a 50/50 division.
The financial impact of the marriage date is profound.
How the Date of Marriage Affects Spousal Maintenance
Texas law allows spousal maintenance under certain conditions. One key requirement of spousal maintenance is that the marriage lasted at least 10 years. In addition, one spouse lacks sufficient means to meet basic needs after the divorce.
If a couple’s formal marriage is under 10 years – but they qualify for common law marriage beginning earlier – they may still meet the 10-year threshold.
Spousal maintenance in Texas may be:
- Up to $5,000/month or 20% of the paying spouse’s income, whichever is less.
- Awarded for 5, 7, or 10 years, depending on the length of the marriage and the circumstances.
So again, the marriage date can substantially influence the support one spouse may be entitled to receive – or be required to pay.
Capps Family Law Firm Can Answer These Questions and More
If you’re facing a same-sex divorce in Texas, understanding how your date of marriage is determined is essential. Whether you were formally married or believe you entered into a common law marriage before 2015, the legal implications, especially for property division and spousal support, can be significant.
At Capps Family Law Firm, our team is experienced in helping same-sex couples navigate these complex legal matters and/or any concerns that you may have about the financial implications of determining the date of marriage in your same-sex relationship. We’ll work with you to protect your rights and clarify how the law applies to your unique situation.
If you would like to discuss your family law matter, contact our office or call our office at (512) 338-9800.
About the Author:
Jami K. Hale is an Associate Attorney at Capps Family Law Firm, bringing over 12 years of dedicated experience in family law. She has handled complex custody proceedings, high-conflict divorces, and LGBTQ+ family matters – first as a solo practitioner and later advocating for underserved communities at Texas RioGrande Legal Aid. A Texas native and proud Austinite, Jami channels her deep commitment to service through extensive pro bono work, supporting veterans, foster and adoptive families, and the LGBTQ+ community and earning recognition such as “Advocate of the Year” and multiple pro bono honors.
