July 1, 2025 • 26 mins
The legal terrain for same-sex couples in Texas continues to evolve, leaving many families with pressing questions about their rights and vulnerabilities. Texas family law presents unique challenges and considerations for same-sex couples, particularly regarding parentage determination and property rights.
Hunt Law Firm attorneys Alex Hunt and Kay Rush unravel the complex history and current state of LGBTQ+ family law in the Lone Star State.
FOLLOW ▶
Web: https://www.familylawyerkaty.com
Facebook: @huntlawtexas
Instagram: @huntlawtexas
X/Twitter: @huntlawtexas
YouTube: @huntlawtexas
This podcast is intended for informational purposes only and is not intended to be legal advice. The information in this podcast is not intended to and does not create an attorney-client relationship.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:09):
Welcome back to the Texas Family Lawyer Podcast.
I'm Alex Hunt.
I'm the managing attorney atHunt Law Firm.
We've got offices in Katy SugarLand, cypress and League City,
and today we're covering anexciting topic and I'm joined by
attorney in our League Cityoffice, kay Rush.
Welcome, kay.
Speaker 2 (00:25):
Thank you, alex, good to be here.
Speaker 1 (00:27):
All right, so we're going to tackle a topic that we
haven't discussed on the podcastyet.
You've done quite a bit ofwriting on our website about it,
but it's what seems sex couplesneed to know about Texas family
law.
And before we dig into thetopic, you know some viewers,
some listeners might be thinkingyou know, how is this different
(00:50):
from a opposite sex marriage,opposite sex relationship?
And in many aspects it's not,but in some aspects there really
are differences that the LGBTQplus community needs to be aware
of.
So tell us a little bit abouthow you see it as different, and
(01:11):
there's certain things thatpeople need to know that we look
at.
Speaker 2 (01:26):
Usually it's property and child issues.
As far as property goes,there's not a ton that's going
to be different in division ofproperty.
We do kind of have to look outfor what's going to be community
, what's going to be separate.
But you have that in a normalopposite-sex couples divorce
anyway.
But child issues is wherereally I think the queer
community needs to be very, veryaware of their rights and
what's going on, what they needto do to make sure that their
(01:48):
kids are going to be in the bestposition that they can be in.
Speaker 1 (01:51):
Yeah, and we're going to go back, before we get into
what needs to be known, just totalk a little bit about the
procedural history.
We're going to try not to gotoo far into the weeds, but
we're both practitioners and theweeds.
But you know, we're bothpractitioners and the weeds is
sometimes where we live whenwe're in our practice.
So we'll get into it a littlebit If there are folks out there
(02:11):
that might be interested inthis too.
But you know, it really kind ofstarts in 1997 when Texas
enacted section 2.001 of theTexas Family Code and that was,
I believe, the first time thatthere was an explicit ban
preventing the recognition ofsame-sex marriages from other
states or other countries.
(02:33):
2003, it was expanded upon alittle bit and it made void any
same-sex marriage, whether itwas from a different country or
a different state.
And then in 2005 was when Texaslegislature passed a
constitutional amendment, whichthen went to the voters and was
(02:56):
approved, that defined marriageas solely the union between a
man and a woman, and that wasvery common.
There was a number of statesthat passed similar
constitutional amendments atthat time and there wasn't, you
know, there was litigation thatwas happening, but there wasn't
a lot of change in the law untilabout the mid 2010s.
(03:21):
What started to happen around2013 to 2015?
Speaker 2 (03:27):
So in 2013, in Texas, a federal lawsuit was filed,
deleon v Perry, which allegedthat Texas's constitutional
amendment was invalid on USconstitutional grounds.
The judge in that case did findthat the Texas constitutional
amendment was invalid on equalprotection grounds, but a final
judgment was stayed in that casewhile Obergefell went up, and
(03:51):
so then nothing ended uphappening with that case because
Obergefell took care of it.
Speaker 1 (03:57):
And in 2015, the Obergefell v Hodges decision.
This was a big one.
Tell us about.
That was a USs supreme courtdecision.
Tell us what that was and andwhat it meant for the law in
texas regarding same-sexmarriage right.
Speaker 2 (04:12):
so obergefell um, I mean as, as I'm sure most people
probably are aware, if they'relistening to this podcast, they
probably already know obergefellis the decision that made
same-sex marriage legal in all50 states and was recently
threatened by the Dobbs decision.
So in Texas, that really justmeant that the statutory
(04:35):
provisions, the constitutionalamendment that was passed,
saying no, you know, lgbtqpeople can't be married those
were nullified essentially, butthey're still there, but
Obergefell stops them now frombeing effective.
Speaker 1 (04:51):
Okay, and so there have been a few subsequent
decisions, after the big one,obergefell, which legalized
across the entire United Statessame-sex marriage.
What are the really importantdecisions since Obergefell?
Speaker 2 (05:07):
So the biggest one I think in the state of Texas is
in 2017, we had Pigeon versusTurner, which was a pushback on
marriage benefits here inHouston actually.
Speaker 1 (05:17):
Okay.
Speaker 2 (05:19):
And that was a religious objection to taxpayer
money being used to providebenefits for city employees
spouses of city employees thatwere in a same-sex marriage.
That case did end up beingdecided in favor of benefits
(05:41):
being continued benefits beingcontinued.
But I believe that group hascome back a couple of times
since and still tried, onessentially the same grounds, to
continue filing lawsuits.
So Pigeon versus Turner is abig one in Houston.
Speaker 1 (05:56):
Okay.
So the current status right nowis that same-sex marriage is
legal in Texas, legal throughoutthe United States, recognized
as a result of the Obergefell,the Hodges decision.
All of the counties, countyclerks, must.
They're required to issuemarriage licenses to same-sex
(06:17):
couples, right?
So some of the differences youknow, we're starting to get into
now.
What are some of thedifferences that same-sex
couples need to be aware of?
And that relates to if you werein Texas before 2015,.
Before the Obergefell decision,and there's this concept called
(06:39):
common-law marriage, whetherit's an opposite-sex couple or
same-sex couple, and you mightnot have been formally married,
but you can have a common lawmarriage if you meet a few
requirements, the most importantof which is that there was an
agreement that you were going tobe married and that you
represented to other people thatyou were married.
And there are some same-sexcouples that, prior to 2015, did
(07:02):
that and it's still working itsway through the courts about
whether those people areconsidered to have been common
law married.
So the real question is is theObergefell decision retroactive,
meaning, is it active forpeople that had a common law
marriage before 2015?
Walk me through a little bit ofthat analysis and where we are
(07:24):
today walk me through a littlebit of that analysis and where
we are today.
Speaker 2 (07:33):
So that is still, I think, a very big question mark
in a lot of counties in Texas.
In 2016, there was a decisionin Reynolds v Dooling where a
federal judge actually in theeastern district of Texas did
find that Obergefell was goingto be applied retroactively in a
in a personal injury, uhwrongful death case okay which
was being brought then by acommon law spouse, so that
(07:59):
person was then able to stepinto those shoes and be able to
bring that suit as their spouse.
Speaker 1 (08:04):
Okay, so not a family law case, but still a judicial
ruling that found that apre-2015 marriage was valid.
Correct, okay.
What else?
Speaker 2 (08:14):
That is, I think, the only explicit case that has
done that in the state of Texas.
Now there have been a couple ofcases where there have been
jury trials on the issue ofTexas.
Now there have been a couple ofcases where there have been
jury trials on the issue and ajury found that there was not a
common law marriage and therewas evidence to support that
jury finding.
So the judges never really gotto the retroactivity issue in
(08:35):
those cases.
Speaker 1 (08:38):
Okay, and in Texas, the laws that we mentioned
earlier.
You know Chapter 2, chapter 6,the Texas Family Code.
It establishes marriage betweena man and one woman and that
(09:08):
can cause difficulty sometimesif you have a judge who says,
well, the law says it's betweenone man and one woman.
We've had a few instances wherethat's been the case.
But the Obergefell decision isthe law of the land.
It's the highest court in theUnited States.
It applies to Texas, it appliesto the judges here as well.
So let's talk a little bitabout because we talked about
(09:33):
the retroactivity of Obergefelland if you maybe had a common
law marriage before 2015, thenit's really unclear about
whether your marriage and if youwere to get divorced or to have
a court case, you might bemaking precedent setting law.
But there are other issues,namely property issues.
(09:59):
So how would that retroactivitydecision by a court affect
property issues?
Speaker 2 (10:07):
So it affects, because Texas is a community
property state and any propertyacquired during the marriage is
going to be community property,subject to division by the court
.
It's pretty important to knowwhen you got married, and that's
hard to know if you don't knowwhether Obergefell is
retroactive.
Some people you know maybe hadsome kind of commitment ceremony
(10:30):
and that's easier to pin down adate.
But if it's going to bedifficult to pin down a date,
right yeah, then you're kind ofup a creek without a paddle for
a little while, until you justdecide on a date or have a date
found by the court.
Speaker 1 (10:45):
Yeah, and just to give an example, let's say you
have a couple that agreed to bemarried in 2010 and they
purchased.
They were common law married,potentially between 2010 and
2015 when the Obergefelldecision happened, and then they
bought a house in one of thespouse's names in 2012.
(11:12):
The question would be and ifthis were an opposite sex couple
and the court found there was acommon law marriage?
Even though it's in one of theparty's names, it is owned by
both of them as communityproperty and would be subject to
a division between both of them, as if both of them owned it.
The question for the courtwould be is there really a
(11:32):
common law marriage?
If not, then the only the partythat's on the title uh to that,
to the deed, to that home isthe owner, versus the other
spouse having some sort ofinterest in it, which could
create situations that would bejust, you know, grossly unfair,
where if there was a, if therewere spouses that agreed to be
(11:55):
married and they bought thishouse together and then they
don't get any of the proceedsfrom it, it's just going to lead
to unfair rulings and you knowwe haven't seen any major
decisions on that, but I imaginethat that's got to be coming
down the pike at some point,that we're going to see some
(12:16):
decisions on that retroactivity.
I can't imagine I mean I'm verysurprised that in the decades
since, this ruling has come down, that there's not been a little
bit more guidance on that.
(12:37):
Let's shift to kids' issues,because this is where the bulk
of the differences between asame-sex relationship versus an
opposite-sex relationship aregoing to be.
If you have a child together,it can be, and so the first
thing to consider is determiningparentage of a child.
(13:02):
If a couple has a childtogether, we need to determine
who the parents of that childare.
If you have a man and a womanand they have the child,
naturally it's fairly easy todetermine that, especially if
they're married.
And how would we do it in anopposite sex relationship?
(13:23):
Well, let's just, together, godown the ways that, if this were
a opposite sex relationship,how we would do that.
The first way would be is ifthey're married, then there is a
presumption that the husband isthe father of the child.
Speaker 2 (13:52):
The husband is the father of the child.
If you have two women that aremarried or you have two men that
are married, that's notnecessarily going to be the case
.
How does that get applied?
How does that differ in insame-sex marriages?
I'm not entirely sure that itapplies in the same way, because
it is a rebuttable presumption,which means that you know, if
there is evidence to supportthat the presumption is
incorrect, then it just doesn'tapply anymore, right?
(14:15):
I would think that wouldprobably be pretty easy to do in
a case where you have same-sexcouples.
You know, you get a good lawyerin there who says Judge, I want
you to take judicial notice ofthe fact of biology right, that
two women on their own can'tconceive, two men on their own
can't conceive, and I wouldthink, probably, that that
(14:37):
presumption would be rebuttedpretty quickly would be rebutted
pretty quickly, and it'spossible that you just have some
judges that are trying to reachan equitable outcome and
there's nobody that is objectingto the outcome, and so they're
saying this presumption wouldapply because you're married.
Speaker 1 (14:54):
And so I'm going to give a very generous view of
this and nobody is rebutting it,and so I'm just rolling with it
.
Nobody is rebutting it, and soI'm just rolling with it, and so
we would really need, in orderto you know, if somebody were
going to contend, they wouldneed to be somebody objecting,
(15:14):
and then it would be a questionof what is the judge going to do
, or a judge that, just on theirown, refuses to go along with
that rebuttable presumption.
So the first way would be thepresumption.
The second way would be a DNAtest.
Is what we would do in anopposite sex relationship if
they're not married?
Can't really do that if you'vegot two men that are married,
two women that are marriedbecause you.
Speaker 2 (15:36):
I mean you could, but what would be the point?
Speaker 1 (15:38):
Right.
The third way would be anacknowledgement of paternity.
So in an opposite sex case, ifyou have two people that are not
married, either at the hospitalwhen the child is born or
anytime afterwards, the fathercould sign what's called an
acknowledgement of paternity ata certain provider that's
(16:00):
certified to verify it and theycan say I verify that I am the
father and that counts.
In our show prep for this, weactually looked at the
acknowledgement of paternityform and, mind you, it's called
acknowledgement of paternity andso, by its very nature, you
would think, well, this probablywouldn't apply to two women.
(16:23):
But when we looked at the form,it very explicitly says I am
the biological father of, andthen the child's name, like we
(16:46):
reach is.
This really isn't somethingthat could be used for um, for
adjudicating two women or twomen to be the parent of a child,
unless it's biological?
Speaker 2 (16:49):
I really doubt it.
I mean, maybe the form changesevery now and then, right, I
mean if, if at some point itbecomes something where it says
parent one and parent two ratherthan the other, and father
specifically, maybe that's,maybe that would be an option at
this point.
I don't think that it is.
Speaker 1 (17:08):
And it seemed like that was kind of where we were
going, not necessarily with theacknowledgement of paternity
form, but just generally withinthe states, where that we were
moving more towards parent one,parent two, and that pendulum
has kind of swung back withinthe last, I would say, year or
(17:28):
two, probably within the lastyear, where we're swinging back
a little bit more to not givingas many rights under the
administrative laws of Texas tosame-sex couples, unfortunately.
Okay, so number four would bethat the vital statistics unit
(17:48):
could, at least up until thepoint of divorce, list both
spouses as the parent, but thiscould be revoked at any time.
Speaker 2 (18:00):
We talked a little bit about that.
Tell me what that means.
The vital statistics unit, ifhe has, has the option, has the
the right, I suppose, um, tolist both parents, even if
they're not necessarilyadjudicated?
Um, that's not something that'sby law, that it should not give
a lot of confidence to theparents, given that it can go
(18:21):
away at any time.
Speaker 1 (18:22):
You know birth certificates where the gender
was changed and whatnot.
In Texas they're nowretroactively changing that.
So unless you have, you know,the safest way to do it is
(18:55):
through a court order andthrough a legal process, which
gets us into some of those waysthat we, as practitioners, do
have a bit more confidence in,confidence in, and we want to
have confidence in this becausethis is an important decision
and folks decide.
(19:15):
Folks deserve to have the childincluded, but also the parents
deserve to have closure and astable process, and so the fifth
way of determining who theparents would be would be a
gestational agreement.
If they're, you know they havesome sort of surrogate or
something.
Tell me about how a gestationalagreement would give a little
bit more stability if they havesome sort of surrogate or
something.
Tell me about how a gestationalagreement would give a little
bit more stability, a little bitmore closure for these parents
and the child.
Speaker 2 (19:35):
So a gestational agreement is something that is
used when you have a surrogacy.
It is most commonly used inmale same-sex couples.
Sometimes female same-sexcouples want to use a surrogate
as well, but I think mostcommonly it's used with men.
So that process and it is avery long, kind of difficult
(19:56):
process because there arecertain things that you have to
file, and I mean you have theinitial agreements, right, that
is filed before the child iseven implanted, Then you can
start the process of the embryotransfer and then there is the
entire pregnancy.
(20:16):
You cannot do anything elseduring this process while the
surrogate is pregnant, until thebirth.
After the birth, there is aconfirmation hearing that needs
to happen just to cement thoserights, but it is.
Speaker 1 (20:32):
I mean, it's a minimum year-long process, not
to mention whatever time you'regoing to spend, you know,
finding a surrogate thedocumentation and you know we
have fellow attorneys in thecommunity that we usually refer
(20:53):
these things to because they areso meticulous that we want to
make sure that it gets doneright for our clients and we
will usually refer to thoseexperts in this area to do that.
But getting that paperwork,getting all the T's crossed and
the I's dotted, is the best way,if you have a surrogate, to
make sure that at the end of theday, after you have that
confirmation that you are goingto have both of the parents be
(21:17):
accurately listed for that childbe a termination and a second
parent adoption.
And you know this reallyprovides the greatest legal
security for the two parents.
That can't be overturned bysome sort of extrajudicial or
(21:41):
administrative function.
And what would a terminationand second parent adoption look
like?
Speaker 2 (21:48):
So a termination, and this is a backup option.
If your gestational agreementfalls through, for whatever
reason, you haven't crossed allyour T's, dotted your I's, you
can always terminate thesurrogate and adopt as well.
So that process looks somethinglike your initial paperwork is
going to be filed, your petitionfor termination and adoption.
(22:09):
If you need the termination,the court will appoint an amicus
in your case, which is anattorney that is appointed to
represent the best interest ofthe children.
They kind of serve as thecourt's eyes and ears outside of
the courtroom.
So they're going to come and doa visit with everyone in the
home Just make sure that it's agood environment for a child to
be in.
You'll have an adoptionevaluation conducted for the
(22:33):
same reason, just to make surethat everything is on the up and
up.
Everyone in the house will haveto be fingerprinted and have a
background check done, includingpeople who are living there but
not part of the suit.
Speaker 1 (22:47):
So the biological parent needs to have that done
as well, because they're livingin the house and that's the best
option if one of the parents isa biological parent and then
the other isn't would be to gothrough that process, and I
think before the show we weretalking about it.
You know, this is really.
This is such a fluctuating areaof law, so you always need to
(23:09):
go to a family lawyer to get themost up to date state of the
art advice, but this is reallybecome the gold standard, for if
you've got a same sex couple,one of the parents is the
biological parent.
Speaker 2 (23:28):
This is what's going to cement both of y'all's
relationship with that child,correct?
And you know I I mean Ipersonally have known people who
have failed to do second parentadoptions and gotten divorced
and not had any rights, notgotten to see their children,
their children.
Speaker 1 (23:40):
Yeah, um, that's heartbreaking.
Yes, yeah, and, and, and it'sdevastating for the child as
well.
Speaker 2 (23:47):
Yes, so it is something that I mean people do
need to take really seriously,and don't wait until your
relationship is rocky to do ityou have surrogacy, you have one
(24:09):
biological parent.
Speaker 1 (24:09):
There's so many scenarios that I really would
implore anybody listening tothis that is considering having
a child and they're in a samesex couple or they have loved
ones that are considering this.
Get the advice of a family lawattorney as soon as possible.
But you can have both of theparents.
If neither of them is abiological parent, have both of
them adopt a child and gothrough the same process as
though you know they weren't asame-sex couple.
(24:31):
If they were just adopting achild, it would be that
termination and adoption processright.
Speaker 2 (24:36):
Right, and it's the same thing.
Only now you have twopetitioners instead of one.
Speaker 1 (24:40):
Yeah, well, overall, this was incredibly helpful.
There are again, like Imentioned, so many different
nuances and this is such achanging area of law that if you
have a specific situationlistener or viewer please come
and see a family lawyer, comeand see Kay, come and see any of
(25:03):
the lawyers at Hunt Law Firm.
We do consultations on Zoom bytelephone at our League City
office, at our Katy CypressSugar Land office.
We'll come and listen to yoursituation and we'll be able to
give you specific advice,depending on what is affecting
you and what you need to do.
(25:24):
We also have including somearticles that are excellent and
very detailed, that are writtenby Kay, on issues that are
affecting same-sex couples, andso if you go to our website,
familylawyerkatiecom, and youclick the resources tab, and
then you click the blog tab andyou can even type in the search
(25:45):
bar at the top what you'relooking for, you're going to
find just an enormous amount ofinformation.
So, start there.
You can set up a consultationon our website, you can give us
a call at 832-315-5494.
And we'd love to talk to you.
So, again, kay, thank you somuch for imparting this
knowledge and for joining me.
Thank you for having me Allright, and we'll see everybody
(26:07):
else next time.
Thanks for joining.
Welcome back to the Texas Family Lawyer Podcast.
I'm Alex Hunt.
I'm the managing attorney atHunt Law Firm.
We've got offices in Katy SugarLand, cypress and League City,
and today we're covering anexciting topic and I'm joined by
attorney in our League Cityoffice, kay Rush.
Welcome, kay.
Speaker 2 (00:25):
Thank you, alex, good to be here.
Speaker 1 (00:27):
All right, so we're going to tackle a topic that we
haven't discussed on the podcastyet.
You've done quite a bit ofwriting on our website about it,
but it's what seems sex couplesneed to know about Texas family
law.
And before we dig into thetopic, you know some viewers,
some listeners might be thinkingyou know, how is this different
(00:50):
from a opposite sex marriage,opposite sex relationship?
And in many aspects it's not,but in some aspects there really
are differences that the LGBTQplus community needs to be aware
of.
So tell us a little bit abouthow you see it as different, and
(01:11):
there's certain things thatpeople need to know that we look
at.
Speaker 2 (01:26):
Usually it's property and child issues.
As far as property goes,there's not a ton that's going
to be different in division ofproperty.
We do kind of have to look outfor what's going to be community
, what's going to be separate.
But you have that in a normalopposite-sex couples divorce
anyway.
But child issues is wherereally I think the queer
community needs to be very, veryaware of their rights and
what's going on, what they needto do to make sure that their
(01:48):
kids are going to be in the bestposition that they can be in.
Speaker 1 (01:51):
Yeah, and we're going to go back, before we get into
what needs to be known, just totalk a little bit about the
procedural history.
We're going to try not to gotoo far into the weeds, but
we're both practitioners and theweeds.
But you know, we're bothpractitioners and the weeds is
sometimes where we live whenwe're in our practice.
So we'll get into it a littlebit If there are folks out there
(02:11):
that might be interested inthis too.
But you know, it really kind ofstarts in 1997 when Texas
enacted section 2.001 of theTexas Family Code and that was,
I believe, the first time thatthere was an explicit ban
preventing the recognition ofsame-sex marriages from other
states or other countries.
(02:33):
2003, it was expanded upon alittle bit and it made void any
same-sex marriage, whether itwas from a different country or
a different state.
And then in 2005 was when Texaslegislature passed a
constitutional amendment, whichthen went to the voters and was
(02:56):
approved, that defined marriageas solely the union between a
man and a woman, and that wasvery common.
There was a number of statesthat passed similar
constitutional amendments atthat time and there wasn't, you
know, there was litigation thatwas happening, but there wasn't
a lot of change in the law untilabout the mid 2010s.
(03:21):
What started to happen around2013 to 2015?
Speaker 2 (03:27):
So in 2013, in Texas, a federal lawsuit was filed,
deleon v Perry, which allegedthat Texas's constitutional
amendment was invalid on USconstitutional grounds.
The judge in that case did findthat the Texas constitutional
amendment was invalid on equalprotection grounds, but a final
judgment was stayed in that casewhile Obergefell went up, and
(03:51):
so then nothing ended uphappening with that case because
Obergefell took care of it.
Speaker 1 (03:57):
And in 2015, the Obergefell v Hodges decision.
This was a big one.
Tell us about.
That was a USs supreme courtdecision.
Tell us what that was and andwhat it meant for the law in
texas regarding same-sexmarriage right.
Speaker 2 (04:12):
so obergefell um, I mean as, as I'm sure most people
probably are aware, if they'relistening to this podcast, they
probably already know obergefellis the decision that made
same-sex marriage legal in all50 states and was recently
threatened by the Dobbs decision.
So in Texas, that really justmeant that the statutory
(04:35):
provisions, the constitutionalamendment that was passed,
saying no, you know, lgbtqpeople can't be married those
were nullified essentially, butthey're still there, but
Obergefell stops them now frombeing effective.
Speaker 1 (04:51):
Okay, and so there have been a few subsequent
decisions, after the big one,obergefell, which legalized
across the entire United Statessame-sex marriage.
What are the really importantdecisions since Obergefell?
Speaker 2 (05:07):
So the biggest one I think in the state of Texas is
in 2017, we had Pigeon versusTurner, which was a pushback on
marriage benefits here inHouston actually.
Speaker 1 (05:17):
Okay.
Speaker 2 (05:19):
And that was a religious objection to taxpayer
money being used to providebenefits for city employees
spouses of city employees thatwere in a same-sex marriage.
That case did end up beingdecided in favor of benefits
(05:41):
being continued benefits beingcontinued.
But I believe that group hascome back a couple of times
since and still tried, onessentially the same grounds, to
continue filing lawsuits.
So Pigeon versus Turner is abig one in Houston.
Speaker 1 (05:56):
Okay.
So the current status right nowis that same-sex marriage is
legal in Texas, legal throughoutthe United States, recognized
as a result of the Obergefell,the Hodges decision.
All of the counties, countyclerks, must.
They're required to issuemarriage licenses to same-sex
(06:17):
couples, right?
So some of the differences youknow, we're starting to get into
now.
What are some of thedifferences that same-sex
couples need to be aware of?
And that relates to if you werein Texas before 2015,.
Before the Obergefell decision,and there's this concept called
(06:39):
common-law marriage, whetherit's an opposite-sex couple or
same-sex couple, and you mightnot have been formally married,
but you can have a common lawmarriage if you meet a few
requirements, the most importantof which is that there was an
agreement that you were going tobe married and that you
represented to other people thatyou were married.
And there are some same-sexcouples that, prior to 2015, did
(07:02):
that and it's still working itsway through the courts about
whether those people areconsidered to have been common
law married.
So the real question is is theObergefell decision retroactive,
meaning, is it active forpeople that had a common law
marriage before 2015?
Walk me through a little bit ofthat analysis and where we are
(07:24):
today walk me through a littlebit of that analysis and where
we are today.
Speaker 2 (07:33):
So that is still, I think, a very big question mark
in a lot of counties in Texas.
In 2016, there was a decisionin Reynolds v Dooling where a
federal judge actually in theeastern district of Texas did
find that Obergefell was goingto be applied retroactively in a
in a personal injury, uhwrongful death case okay which
was being brought then by acommon law spouse, so that
(07:59):
person was then able to stepinto those shoes and be able to
bring that suit as their spouse.
Speaker 1 (08:04):
Okay, so not a family law case, but still a judicial
ruling that found that apre-2015 marriage was valid.
Correct, okay.
What else?
Speaker 2 (08:14):
That is, I think, the only explicit case that has
done that in the state of Texas.
Now there have been a couple ofcases where there have been
jury trials on the issue ofTexas.
Now there have been a couple ofcases where there have been
jury trials on the issue and ajury found that there was not a
common law marriage and therewas evidence to support that
jury finding.
So the judges never really gotto the retroactivity issue in
(08:35):
those cases.
Speaker 1 (08:38):
Okay, and in Texas, the laws that we mentioned
earlier.
You know Chapter 2, chapter 6,the Texas Family Code.
It establishes marriage betweena man and one woman and that
(09:08):
can cause difficulty sometimesif you have a judge who says,
well, the law says it's betweenone man and one woman.
We've had a few instances wherethat's been the case.
But the Obergefell decision isthe law of the land.
It's the highest court in theUnited States.
It applies to Texas, it appliesto the judges here as well.
So let's talk a little bitabout because we talked about
(09:33):
the retroactivity of Obergefelland if you maybe had a common
law marriage before 2015, thenit's really unclear about
whether your marriage and if youwere to get divorced or to have
a court case, you might bemaking precedent setting law.
But there are other issues,namely property issues.
(09:59):
So how would that retroactivitydecision by a court affect
property issues?
Speaker 2 (10:07):
So it affects, because Texas is a community
property state and any propertyacquired during the marriage is
going to be community property,subject to division by the court
.
It's pretty important to knowwhen you got married, and that's
hard to know if you don't knowwhether Obergefell is
retroactive.
Some people you know maybe hadsome kind of commitment ceremony
(10:30):
and that's easier to pin down adate.
But if it's going to bedifficult to pin down a date,
right yeah, then you're kind ofup a creek without a paddle for
a little while, until you justdecide on a date or have a date
found by the court.
Speaker 1 (10:45):
Yeah, and just to give an example, let's say you
have a couple that agreed to bemarried in 2010 and they
purchased.
They were common law married,potentially between 2010 and
2015 when the Obergefelldecision happened, and then they
bought a house in one of thespouse's names in 2012.
(11:12):
The question would be and ifthis were an opposite sex couple
and the court found there was acommon law marriage?
Even though it's in one of theparty's names, it is owned by
both of them as communityproperty and would be subject to
a division between both of them, as if both of them owned it.
The question for the courtwould be is there really a
(11:32):
common law marriage?
If not, then the only the partythat's on the title uh to that,
to the deed, to that home isthe owner, versus the other
spouse having some sort ofinterest in it, which could
create situations that would bejust, you know, grossly unfair,
where if there was a, if therewere spouses that agreed to be
(11:55):
married and they bought thishouse together and then they
don't get any of the proceedsfrom it, it's just going to lead
to unfair rulings and you knowwe haven't seen any major
decisions on that, but I imaginethat that's got to be coming
down the pike at some point,that we're going to see some
(12:16):
decisions on that retroactivity.
I can't imagine I mean I'm verysurprised that in the decades
since, this ruling has come down, that there's not been a little
bit more guidance on that.
(12:37):
Let's shift to kids' issues,because this is where the bulk
of the differences between asame-sex relationship versus an
opposite-sex relationship aregoing to be.
If you have a child together,it can be, and so the first
thing to consider is determiningparentage of a child.
(13:02):
If a couple has a childtogether, we need to determine
who the parents of that childare.
If you have a man and a womanand they have the child,
naturally it's fairly easy todetermine that, especially if
they're married.
And how would we do it in anopposite sex relationship?
(13:23):
Well, let's just, together, godown the ways that, if this were
a opposite sex relationship,how we would do that.
The first way would be is ifthey're married, then there is a
presumption that the husband isthe father of the child.
Speaker 2 (13:52):
The husband is the father of the child.
If you have two women that aremarried or you have two men that
are married, that's notnecessarily going to be the case
.
How does that get applied?
How does that differ in insame-sex marriages?
I'm not entirely sure that itapplies in the same way, because
it is a rebuttable presumption,which means that you know, if
there is evidence to supportthat the presumption is
incorrect, then it just doesn'tapply anymore, right?
(14:15):
I would think that wouldprobably be pretty easy to do in
a case where you have same-sexcouples.
You know, you get a good lawyerin there who says Judge, I want
you to take judicial notice ofthe fact of biology right, that
two women on their own can'tconceive, two men on their own
can't conceive, and I wouldthink, probably, that that
(14:37):
presumption would be rebuttedpretty quickly would be rebutted
pretty quickly, and it'spossible that you just have some
judges that are trying to reachan equitable outcome and
there's nobody that is objectingto the outcome, and so they're
saying this presumption wouldapply because you're married.
Speaker 1 (14:54):
And so I'm going to give a very generous view of
this and nobody is rebutting it,and so I'm just rolling with it
.
Nobody is rebutting it, and soI'm just rolling with it, and so
we would really need, in orderto you know, if somebody were
going to contend, they wouldneed to be somebody objecting,
(15:14):
and then it would be a questionof what is the judge going to do
, or a judge that, just on theirown, refuses to go along with
that rebuttable presumption.
So the first way would be thepresumption.
The second way would be a DNAtest.
Is what we would do in anopposite sex relationship if
they're not married?
Can't really do that if you'vegot two men that are married,
two women that are marriedbecause you.
Speaker 2 (15:36):
I mean you could, but what would be the point?
Speaker 1 (15:38):
Right.
The third way would be anacknowledgement of paternity.
So in an opposite sex case, ifyou have two people that are not
married, either at the hospitalwhen the child is born or
anytime afterwards, the fathercould sign what's called an
acknowledgement of paternity ata certain provider that's
(16:00):
certified to verify it and theycan say I verify that I am the
father and that counts.
In our show prep for this, weactually looked at the
acknowledgement of paternityform and, mind you, it's called
acknowledgement of paternity andso, by its very nature, you
would think, well, this probablywouldn't apply to two women.
(16:23):
But when we looked at the form,it very explicitly says I am
the biological father of, andthen the child's name, like we
(16:46):
reach is.
This really isn't somethingthat could be used for um, for
adjudicating two women or twomen to be the parent of a child,
unless it's biological?
Speaker 2 (16:49):
I really doubt it.
I mean, maybe the form changesevery now and then, right, I
mean if, if at some point itbecomes something where it says
parent one and parent two ratherthan the other, and father
specifically, maybe that's,maybe that would be an option at
this point.
I don't think that it is.
Speaker 1 (17:08):
And it seemed like that was kind of where we were
going, not necessarily with theacknowledgement of paternity
form, but just generally withinthe states, where that we were
moving more towards parent one,parent two, and that pendulum
has kind of swung back withinthe last, I would say, year or
(17:28):
two, probably within the lastyear, where we're swinging back
a little bit more to not givingas many rights under the
administrative laws of Texas tosame-sex couples, unfortunately.
Okay, so number four would bethat the vital statistics unit
(17:48):
could, at least up until thepoint of divorce, list both
spouses as the parent, but thiscould be revoked at any time.
Speaker 2 (18:00):
We talked a little bit about that.
Tell me what that means.
The vital statistics unit, ifhe has, has the option, has the
the right, I suppose, um, tolist both parents, even if
they're not necessarilyadjudicated?
Um, that's not something that'sby law, that it should not give
a lot of confidence to theparents, given that it can go
(18:21):
away at any time.
Speaker 1 (18:22):
You know birth certificates where the gender
was changed and whatnot.
In Texas they're nowretroactively changing that.
So unless you have, you know,the safest way to do it is
(18:55):
through a court order andthrough a legal process, which
gets us into some of those waysthat we, as practitioners, do
have a bit more confidence in,confidence in, and we want to
have confidence in this becausethis is an important decision
and folks decide.
(19:15):
Folks deserve to have the childincluded, but also the parents
deserve to have closure and astable process, and so the fifth
way of determining who theparents would be would be a
gestational agreement.
If they're, you know they havesome sort of surrogate or
something.
Tell me about how a gestationalagreement would give a little
bit more stability if they havesome sort of surrogate or
something.
Tell me about how a gestationalagreement would give a little
bit more stability, a little bitmore closure for these parents
and the child.
Speaker 2 (19:35):
So a gestational agreement is something that is
used when you have a surrogacy.
It is most commonly used inmale same-sex couples.
Sometimes female same-sexcouples want to use a surrogate
as well, but I think mostcommonly it's used with men.
So that process and it is avery long, kind of difficult
(19:56):
process because there arecertain things that you have to
file, and I mean you have theinitial agreements, right, that
is filed before the child iseven implanted, Then you can
start the process of the embryotransfer and then there is the
entire pregnancy.
(20:16):
You cannot do anything elseduring this process while the
surrogate is pregnant, until thebirth.
After the birth, there is aconfirmation hearing that needs
to happen just to cement thoserights, but it is.
Speaker 1 (20:32):
I mean, it's a minimum year-long process, not
to mention whatever time you'regoing to spend, you know,
finding a surrogate thedocumentation and you know we
have fellow attorneys in thecommunity that we usually refer
(20:53):
these things to because they areso meticulous that we want to
make sure that it gets doneright for our clients and we
will usually refer to thoseexperts in this area to do that.
But getting that paperwork,getting all the T's crossed and
the I's dotted, is the best way,if you have a surrogate, to
make sure that at the end of theday, after you have that
confirmation that you are goingto have both of the parents be
(21:17):
accurately listed for that childbe a termination and a second
parent adoption.
And you know this reallyprovides the greatest legal
security for the two parents.
That can't be overturned bysome sort of extrajudicial or
(21:41):
administrative function.
And what would a terminationand second parent adoption look
like?
Speaker 2 (21:48):
So a termination, and this is a backup option.
If your gestational agreementfalls through, for whatever
reason, you haven't crossed allyour T's, dotted your I's, you
can always terminate thesurrogate and adopt as well.
So that process looks somethinglike your initial paperwork is
going to be filed, your petitionfor termination and adoption.
(22:09):
If you need the termination,the court will appoint an amicus
in your case, which is anattorney that is appointed to
represent the best interest ofthe children.
They kind of serve as thecourt's eyes and ears outside of
the courtroom.
So they're going to come and doa visit with everyone in the
home Just make sure that it's agood environment for a child to
be in.
You'll have an adoptionevaluation conducted for the
(22:33):
same reason, just to make surethat everything is on the up and
up.
Everyone in the house will haveto be fingerprinted and have a
background check done, includingpeople who are living there but
not part of the suit.
Speaker 1 (22:47):
So the biological parent needs to have that done
as well, because they're livingin the house and that's the best
option if one of the parents isa biological parent and then
the other isn't would be to gothrough that process, and I
think before the show we weretalking about it.
You know, this is really.
This is such a fluctuating areaof law, so you always need to
(23:09):
go to a family lawyer to get themost up to date state of the
art advice, but this is reallybecome the gold standard, for if
you've got a same sex couple,one of the parents is the
biological parent.
Speaker 2 (23:28):
This is what's going to cement both of y'all's
relationship with that child,correct?
And you know I I mean Ipersonally have known people who
have failed to do second parentadoptions and gotten divorced
and not had any rights, notgotten to see their children,
their children.
Speaker 1 (23:40):
Yeah, um, that's heartbreaking.
Yes, yeah, and, and, and it'sdevastating for the child as
well.
Speaker 2 (23:47):
Yes, so it is something that I mean people do
need to take really seriously,and don't wait until your
relationship is rocky to do ityou have surrogacy, you have one
(24:09):
biological parent.
Speaker 1 (24:09):
There's so many scenarios that I really would
implore anybody listening tothis that is considering having
a child and they're in a samesex couple or they have loved
ones that are considering this.
Get the advice of a family lawattorney as soon as possible.
But you can have both of theparents.
If neither of them is abiological parent, have both of
them adopt a child and gothrough the same process as
though you know they weren't asame-sex couple.
(24:31):
If they were just adopting achild, it would be that
termination and adoption processright.
Speaker 2 (24:36):
Right, and it's the same thing.
Only now you have twopetitioners instead of one.
Speaker 1 (24:40):
Yeah, well, overall, this was incredibly helpful.
There are again, like Imentioned, so many different
nuances and this is such achanging area of law that if you
have a specific situationlistener or viewer please come
and see a family lawyer, comeand see Kay, come and see any of
(25:03):
the lawyers at Hunt Law Firm.
We do consultations on Zoom bytelephone at our League City
office, at our Katy CypressSugar Land office.
We'll come and listen to yoursituation and we'll be able to
give you specific advice,depending on what is affecting
you and what you need to do.
(25:24):
We also have including somearticles that are excellent and
very detailed, that are writtenby Kay, on issues that are
affecting same-sex couples, andso if you go to our website,
familylawyerkatiecom, and youclick the resources tab, and
then you click the blog tab andyou can even type in the search
(25:45):
bar at the top what you'relooking for, you're going to
find just an enormous amount ofinformation.
So, start there.
You can set up a consultationon our website, you can give us
a call at 832-315-5494.
And we'd love to talk to you.
So, again, kay, thank you somuch for imparting this
knowledge and for joining me.
Thank you for having me Allright, and we'll see everybody
(26:07):
else next time.
Thanks for joining.
Popular Podcasts
On Purpose with Jay Shetty
I’m Jay Shetty host of On Purpose the worlds #1 Mental Health podcast and I’m so grateful you found us. I started this podcast 5 years ago to invite you into conversations and workshops that are designed to help make you happier, healthier and more healed. I believe that when you (yes you) feel seen, heard and understood you’re able to deal with relationship struggles, work challenges and life’s ups and downs with more ease and grace. I interview experts, celebrities, thought leaders and athletes so that we can grow our mindset, build better habits and uncover a side of them we’ve never seen before. New episodes every Monday and Friday. Your support means the world to me and I don’t take it for granted — click the follow button and leave a review to help us spread the love with On Purpose. I can’t wait for you to listen to your first or 500th episode!
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Special Summer Offer: Exclusively on Apple Podcasts, try our Dateline Premium subscription completely free for one month! With Dateline Premium, you get every episode ad-free plus exclusive bonus content.
24/7 News: The Latest
The latest news in 4 minutes updated every hour, every day.