MARRIAGE EQUALITY Q&A
FOR TEXANS
As an attorney who focuses on the LGBT community, I get contacted quite a bit regarding what it means to be a same-sex couple living in Texas, so I thought I'd take a minute to give you a few things to consider. This is not legal or tax advice nor is it every possible legal consideration.
Q. If we got married in another state, can we get divorced in Texas if we're both Texas residents?
A. Many states that grant marriages to same-sex couples do not require that you live in that state to get married. Texas does not recognize the marriage, so you cannot get divorced here (currently this is a somewhat gray area as some have been granted and we've been waiting for the Texas Supreme Court to weigh in). Each state has its own residency requirement for divorce - typical time frame is 6 months. If you got married in California or DC, then you can get divorced there without either one of you being a resident, although it can be a difficult process to figure out and they won't allow it in all circumstances. There may be one or two other states that have this provision, but I can't think of them at the moment. I suggest going to www.hrc.org for detailed information.
Q. So if we split up and Texas doesn't recognize it, then why does it matter?
A. It matters A LOT! For one, there is a fairly good chance that the US Supreme Court will rule in the next year or two on this issue and there is a strongly likelihood that they will rule in favor of marriage equality. When that happens, you and your spouse will have accumulated a community estate since the date of marriage. In basic terms, that means anything you acquire individually will be jointly owned...even if only one of your names is on the asset, such as a home, car, bank account, etc. So if you got married in another state in 2011, split up in 2013, and in 2015 the US Supreme Court strikes down all state laws banning same-sex marriages, then since 2011 you've accumulated joint assets - even post-2013 when you split up, you've accumulated joint assets regardless of whether just one of your names is on it. So if you buy a house in your name only, it still belongs 50% to your estranged spouse. Make sense? Additionally, you will be unable to get remarried.
Also, as of last year, the Federal government DOES recognize your marriage in a number of areas regardless of where you live. This is still an evolving area, but for sure you MUST file as married on your income tax...even if you split up, because without a legal divorce, you're still married in the eyes of the US government. I recommend you consult a tax attorney or qualified CPA.
Q. Great, so what do I do if we got married and are now split up?
A. If you can't get legally divorced, then you may want to consider having a Separation Agreement done. That agreement basically says you both agree that you are not creating community property from this day forward and if your marriage becomes recognized, then you will get divorced. It's not fool-proof, but it's better than nothing.
Q. Geez, Lorie, we aren't splitting up, but we sure would like to know what we can do to protect each other since Texas doesn't recognize our marriage, what can we do?
A. I'm so glad you asked! I strongly suggest that you and your spouse have a Will, medical and financial powers of attorney, and other related documents set up as soon as possible. In DFW, we are fortunate to have many qualified attorneys in the community, including yours truly, who can assist you. The only thing worse that having no planning is falsely believing these documents can be drafted online or with a form. It never ends up being less expensive in the end. Go to a QUALIFIED expert for all of your important life planning. As a friend of mine says, cheap gets very expensive.
Remember, if you don't have a Will, the state of Texas has one for you, so regardless of your marriage plans, you definitely need to get your affairs in order so the ones who know you best are empowered in case of an emergency.
Feel free to reach out to me with questions!
