Same-Sex Divorce in Texas

Equal Marriage and Divorce Rights in Texas

Same-sex marriage has only been legally recognized in Texas since 2015, after the U.S. Supreme Court’s decision in Obergefell v. Hodges. Before that, same-sex couples could marry elsewhere, but Texas law refused to recognize those marriages or allow divorces. Many LGBTQ+ spouses were left in legal limbo for years.

Today, Texas law gives same-sex couples the same right to divorce as opposite-sex couples. The process is called dissolution of marriage and takes place in District Court. But while the statutes apply equally, in practice same-sex divorce often carries added challenges.

Custody questions may arise if both spouses are not legally recognized as parents. Property division may ignore years of shared life before 2015. And spousal support may be denied because the “legal” marriage was too short, even if the relationship was decades long.

Understanding these realities — and navigating the detailed paperwork Texas courts require — is key to moving forward smoothly.

Filing for Divorce in Texas

Divorces are filed in the District Court of the county where either spouse lives. Residency rules require:

• At least one spouse has lived in Texas for six months, and
• At least one spouse has lived in the county for 90 days.

Texas allows both fault-based and no-fault divorce. Most same-sex couples choose no-fault divorce, citing “insupportability” (irreconcilable differences). It avoids unnecessary conflict and speeds the process.

Child Custody and Support

Child custody in Texas is called conservatorship. Parents may be:

• Joint managing conservators – sharing decision-making, or
• Sole managing conservator – one parent has primary rights.

Parenting time is called possession and access. The court uses the best interests of the child standard in every case.

For LGBTQ+ parents, the main struggle arises when only one spouse is legally recognized. Non-biological parents without adoption or birth certificate recognition may have no guaranteed rights, even after years of parenting. Texas does not broadly recognize de facto parents, making legal documentation essential.

Child support is calculated under state guidelines, usually as a percentage of the noncustodial parent’s income:

• 20% for one child
• 25% for two children
• 30% for three children, and so on

The guidelines also account for healthcare, childcare, and special needs costs.

Property and Debt Division

Texas is a community property state. Property and debts acquired during the marriage are generally split 50/50. Income, real estate, retirement accounts, and vehicles purchased after the wedding are all community property.

Separate property — assets owned before marriage, inheritances, or gifts — remains with the original owner.

This is where same-sex couples often struggle. Many built lives together long before Texas recognized their marriages in 2015. Homes, savings, or businesses acquired before legalization may not be considered community property, even if both contributed equally. While couples can negotiate fair settlements, the law itself draws a hard line at the wedding date.

Spousal Support (Alimony)

Spousal support, called maintenance in Texas, is awarded only in limited cases, such as:

• Marriages of at least 10 years where one spouse cannot meet basic needs,
• A spouse with a disability,
• A spouse caring for a disabled child, or
• Family violence by one spouse within two years of filing.

Even then, maintenance is capped at the lesser of $5,000 per month or 20% of the paying spouse’s income.

For many same-sex couples, the challenge is that the legal marriage date controls eligibility. A couple together for decades but married only since 2015 may not qualify.

Timeline of Divorce in Texas

The divorce process in Texas involves several stages. Even in uncontested cases, it is more involved than many expect:

1. Drafting the Petition for Divorce
   – The process begins by preparing the Original Petition for Divorce. This document lays out the grounds for divorce and the relief sought (custody, property division, etc.). Drafting it correctly is critical, since mistakes can cause delays later.
2. Filing the Petition
   – The Petition is filed with the District Court in the proper county, along with the filing fee. This officially opens the case and assigns it a cause number.
3. Service of Process (or Waiver)
   – The respondent must be formally served with the Petition unless they voluntarily sign a Waiver of Service. If a waiver is used, it must be signed in front of a notary. Improper service or missing notarization is one of the most common reasons cases stall.
4. Mandatory 60-Day Waiting Period
   – Texas requires a minimum 60-day waiting period before any divorce can be finalized. This applies even when both spouses agree on all terms.
5. Temporary Orders (if needed)
   – Either spouse may request temporary orders about child custody, support, or property use. While not always necessary in uncontested cases, they can add weeks or months if disputes exist.
6. Financial Disclosures
   – Both spouses must provide details of income, assets, and debts. While Texas does not mandate standardized disclosure forms, judges expect clear financial records before approving a settlement.
7. Drafting Settlement Agreements and Final Decree
   – During the waiting period, spouses negotiate and document their agreements. The Final Decree of Divorce spells out property division, custody, support, and any spousal maintenance. Parenting Plans or Child Support Worksheets may also be required. These documents must be drafted precisely to meet court requirements.
8. Notarization of Agreements and Affidavits
   – Certain filings must be signed before a notary, such as the Waiver of Service, affidavits, or settlement agreements. Incorrect or missing notarization can cause rejection at the final hearing.
9. Final Hearing
   – In an uncontested divorce, the petitioner attends a brief hearing. The judge reviews the Final Decree of Divorce and, if all documents are properly drafted and notarized, signs it.
10. Entry of Final Decree
    – The signed decree is filed with the court clerk. Only then is the divorce legally complete.

Even when uncontested, divorces in Texas often take three to four months due to the waiting period, drafting, notarization, and court scheduling. Contested cases may last a year or more.

Challenges Unique to Same-Sex Couples in Texas

While the statutes are the same for everyone, same-sex couples often face added hurdles:

• Custody struggles – Non-biological parents without formal adoption may lose standing in custody disputes.
• Pre-2015 property issues – Assets acquired before legalization are not considered community property.
• Maintenance eligibility – Courts base eligibility on the legal marriage date, excluding years of partnership before recognition.
• County differences – Some Texas counties process uncontested divorces more smoothly than others.

For couples who want to minimize risk, uncontested divorce is usually the best path. It avoids prolonged hearings, reduces costs, and keeps the process more private.

Conclusion

Same-sex couples in Texas now have the same legal right to divorce as anyone else, but the process can still feel unfair or overly complicated. Custody rights may be uncertain, property division may exclude years of shared contributions, and spousal support is limited by the legal marriage date.

The reality is that divorce in Texas requires careful drafting, proper notarization, and strict adherence to court rules. For many couples, reaching agreements in advance and filing an uncontested divorce is the most practical option. It keeps the timeline shorter, reduces legal expenses, and avoids unnecessary conflict.

For LGBTQ+ couples across Texas — from Houston and Dallas to Austin, San Antonio, and beyond — understanding the system and preparing paperwork correctly makes all the difference. Divorce is never easy, but with the right approach, it doesn’t have to be harder than it already is.