Speaker 1: 0:09

Welcome back to the Texas Family Lawyer Podcast. I'm Alex Hunt. I'm the managing attorney at Hunt Law Firm. We've got offices in Katy Sugar Land, cypress and League City, and today we're covering an exciting topic and I'm joined by attorney in our League City office, kay Rush. Welcome, kay.

Speaker 2: 0:25

Thank you, alex, good to be here.

Speaker 1: 0:27

All right, so we're going to tackle a topic that we haven't discussed on the podcast yet. You've done quite a bit of writing on our website about it, but it's what seems sex couples need to know about Texas family law. And before we dig into the topic, you know some viewers, some listeners might be thinking you know, how is this different 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 LGBTQ plus community needs to be aware of. So tell us a little bit about how you see it as different, and there's certain things that people need to know that we look at.

Speaker 2: 1:26

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 of property. We do kind of have to look out for what's going to be community, what's going to be separate. But you have that in a normal opposite-sex couples divorce anyway. But child issues is where really I think the queer community needs to be very, very aware of their rights and what's going on, what they need to do to make sure that their kids are going to be in the best position that they can be in.

Speaker 1: 1:51

Yeah, and we're going to go back, before we get into what needs to be known, just to talk a little bit about the procedural history. We're going to try not to go too far into the weeds, but we're both practitioners and the weeds. But you know, we're both practitioners and the weeds is sometimes where we live when we're in our practice. So we'll get into it a little bit If there are folks out there that might be interested in this too.

Speaker 1: 2:13

But you know, it really kind of starts in 1997 when Texas enacted section 2.001 of the Texas Family Code and that was, I believe, the first time that there was an explicit ban preventing the recognition of same-sex marriages from other states or other countries. 2003, it was expanded upon a little bit and it made void any same-sex marriage, whether it was from a different country or a different state. And then in 2005 was when Texas legislature passed a constitutional amendment, which then went to the voters and was approved, that defined marriage as solely the union between a man and a woman, and that was very common. There was a number of states that passed similar constitutional amendments at that time and there wasn't, you know, there was litigation that was happening, but there wasn't a lot of change in the law until about the mid 2010s. What started to happen around 2013 to 2015?

Speaker 2: 3:27

So in 2013, in Texas, a federal lawsuit was filed, deleon v Perry, which alleged that Texas's constitutional amendment was invalid on US constitutional grounds. The judge in that case did find that the Texas constitutional amendment was invalid on equal protection grounds, but a final judgment was stayed in that case while Obergefell went up, and so then nothing ended up happening with that case because Obergefell took care of it.

Speaker 1: 3:57

And in 2015, the Obergefell v Hodges decision. This was a big one. Tell us about. That was a USs supreme court decision. Tell us what that was and and what it meant for the law in texas regarding same-sex marriage right.

Speaker 2: 4:12

so obergefell um, I mean as, as I'm sure most people probably are aware, if they're listening to this podcast, they probably already know obergefell is the decision that made same-sex marriage legal in all 50 states and was recently threatened by the Dobbs decision. So in Texas, that really just meant that the statutory provisions, the constitutional amendment that was passed, saying no, you know, lgbtq people can't be married those were nullified essentially, but they're still there, but Obergefell stops them now from being effective.

Speaker 1: 4:51

Okay, and so there have been a few subsequent decisions, after the big one, obergefell, which legalized across the entire United States same-sex marriage. What are the really important decisions since Obergefell?

Speaker 2: 5:07

So the biggest one I think in the state of Texas is in 2017, we had Pigeon versus Turner, which was a pushback on marriage benefits here in Houston actually.

Speaker 1: 5:17

Okay.

Speaker 2: 5:19

And that was a religious objection to taxpayer money being used to provide benefits for city employees spouses of city employees that were in a same-sex marriage. That case did end up being decided in favor of benefits being continued benefits being continued. But I believe that group has come back a couple of times since and still tried, on essentially the same grounds, to continue filing lawsuits. So Pigeon versus Turner is a big one in Houston.

Speaker 1: 5:56

Okay. So the current status right now is that same-sex marriage is legal in Texas, legal throughout the United States, recognized as a result of the Obergefell, the Hodges decision. All of the counties, county clerks, must. They're required to issue marriage licenses to same-sex couples, right? So some of the differences you know, we're starting to get into now. What are some of the differences that same-sex couples need to be aware of? And that relates to if you were in Texas before 2015,.

Speaker 1: 6:35

Before the Obergefell decision, and there's this concept called common-law marriage, whether it's an opposite-sex couple or same-sex couple, and you might not have been formally married, but you can have a common law marriage if you meet a few requirements, the most important of which is that there was an agreement that you were going to be married and that you represented to other people that you were married. And there are some same-sex couples that, prior to 2015, did that and it's still working its way through the courts about whether those people are considered to have been common law married. So the real question is is the Obergefell decision retroactive, meaning, is it active for people that had a common law marriage before 2015? Walk me through a little bit of that analysis and where we are today walk me through a little bit of that analysis and where we are today.

Speaker 2: 7:33

So that is still, I think, a very big question mark in a lot of counties in Texas. In 2016, there was a decision in Reynolds v Dooling where a federal judge actually in the eastern district of Texas did find that Obergefell was going to be applied retroactively in a in a personal injury, uh wrongful death case okay which was being brought then by a common law spouse, so that person was then able to step into those shoes and be able to bring that suit as their spouse.

Speaker 1: 8:04

Okay, so not a family law case, but still a judicial ruling that found that a pre-2015 marriage was valid. Correct, okay. What else?

Speaker 2: 8:14

That is, I think, the only explicit case that has done that in the state of Texas. Now there have been a couple of cases where there have been jury trials on the issue of Texas. Now there have been a couple of cases where there have been jury trials on the issue and a jury found that there was not a common law marriage and there was evidence to support that jury finding. So the judges never really got to the retroactivity issue in those cases.

Speaker 1: 8:38

Okay, and in Texas, the laws that we mentioned earlier. You know Chapter 2, chapter 6, the Texas Family Code. It establishes marriage between a man and one woman and that can cause difficulty sometimes if you have a judge who says, well, the law says it's between one man and one woman. We've had a few instances where that's been the case. But the Obergefell decision is the law of the land. It's the highest court in the United States. It applies to Texas, it applies to the judges here as well. So let's talk a little bit about because we talked about the retroactivity of Obergefell and if you maybe had a common law marriage before 2015, then it's really unclear about whether your marriage and if you were to get divorced or to have a court case, you might be making precedent setting law. But there are other issues, namely property issues. So how would that retroactivity decision by a court affect property issues?

Speaker 2: 10:07

So it affects, because Texas is a community property state and any property acquired during the marriage is going to be community property, subject to division by the court. It's pretty important to know when you got married, and that's hard to know if you don't know whether Obergefell is retroactive. Some people you know maybe had some kind of commitment ceremony and that's easier to pin down a date. But if it's going to be difficult to pin down a date, right yeah, then you're kind of up a creek without a paddle for a little while, until you just decide 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 be married in 2010 and they purchased.

Speaker 1: 10:57

They were common law married, potentially between 2010 and 2015 when the Obergefell decision happened, and then they bought a house in one of the spouse's names in 2012.

Speaker 1: 11:12

The question would be and if this were an opposite sex couple and the court found there was a common law marriage? Even though it's in one of the party's names, it is owned by both of them as community property and would be subject to a division between both of them, as if both of them owned it. The question for the court would be is there really a common law marriage? If not, then the only the party that's on the title uh to that, to the deed, to that home is the owner, versus the other spouse having some sort of interest in it, which could create situations that would be just, you know, grossly unfair, where if there was a, if there were spouses that agreed to be married and they bought this house together and then they don't get any of the proceeds from it, it's just going to lead to unfair rulings and you know we haven't seen any major decisions on that, but I imagine that that's got to be coming down the pike at some point, that we're going to see some decisions on that retroactivity.

Speaker 1: 12:17

I can't imagine I mean I'm very surprised that in the decades since, this ruling has come down, that there's not been a little bit more guidance on that. Let's shift to kids' issues, because this is where the bulk of the differences between a same-sex relationship versus an opposite-sex relationship are going to be. If you have a child together, it can be, and so the first thing to consider is determining parentage of a child. If a couple has a child together, we need to determine who the parents of that child are. If you have a man and a woman and they have the child, naturally it's fairly easy to determine that, especially if they're married. And how would we do it in an opposite sex relationship? Well, let's just, together, go down the ways that, if this were a opposite sex relationship, how we would do that. The first way would be is if they're married, then there is a presumption that the husband is the father of the child.

Speaker 2: 13:52

The husband is the father of the child. If you have two women that are married or you have two men that are married, that's not necessarily going to be the case. How does that get applied? How does that differ in in same-sex marriages? I'm not entirely sure that it applies in the same way, because it is a rebuttable presumption, which means that you know, if there is evidence to support that the presumption is incorrect, then it just doesn't apply anymore, right? I would think that would probably be pretty easy to do in a case where you have same-sex couples. You know, you get a good lawyer in there who says Judge, I want you to take judicial notice of the fact of biology right, that two women on their own can't conceive, two men on their own can't conceive, and I would think, probably, that that presumption would be rebutted pretty quickly would be rebutted pretty quickly, and it's possible that you just have some judges that are trying to reach an equitable outcome and there's nobody that is objecting to the outcome, and so they're saying this presumption would apply 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 so I'm just rolling with it, and so we would really need, in order to you know, if somebody were going to contend, they would need to be somebody objecting, and then it would be a question of what is the judge going to do, or a judge that, just on their own, refuses to go along with that rebuttable presumption. So the first way would be the presumption. The second way would be a DNA test. Is what we would do in an opposite sex relationship if they're not married? Can't really do that if you've got two men that are married, two women that are married because 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 an acknowledgement of paternity. So in an opposite sex case, if you have two people that are not married, either at the hospital when the child is born or anytime afterwards, the father could sign what's called an acknowledgement of paternity at a certain provider that's certified to verify it and they can say I verify that I am the father and that counts. In our show prep for this, we actually looked at the acknowledgement of paternity form and, mind you, it's called acknowledgement of paternity and so, by its very nature, you would think, well, this probably wouldn't apply to two women. But when we looked at the form, it very explicitly says I am the biological father of, and then the child's name, like we reach is. This really isn't something that could be used for um, for adjudicating two women or two men to be the parent of a child, unless it's biological?

Speaker 2: 16:49

I really doubt it. I mean, maybe the form changes every now and then, right, I mean if, if at some point it becomes something where it says parent one and parent two rather than 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 the acknowledgement of paternity form, but just generally within the states, where that we were moving more towards parent one, parent two, and that pendulum has kind of swung back within the last, I would say, year or two, probably within the last year, where we're swinging back a little bit more to not giving as many rights under the administrative laws of Texas to same-sex couples, unfortunately. Okay, so number four would be that the vital statistics unit could, at least up until the point of divorce, list both spouses as the parent, but this could 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, if he has, has the option, has the the right, I suppose, um, to list both parents, even if they're not necessarily adjudicated? Um, that's not something that's by law, that it should not give a lot of confidence to the parents, given that it can go away at any time.

Speaker 1: 18:22

You know birth certificates where the gender was changed and whatnot. In Texas they're now retroactively changing that. So unless you have, you know, the safest way to do it is through a court order and through a legal process, which gets us into some of those ways that we, as practitioners, do have a bit more confidence in, confidence in, and we want to have confidence in this because this is an important decision and folks decide. Folks deserve to have the child included, but also the parents deserve to have closure and a stable process, and so the fifth way of determining who the parents would be would be a gestational agreement. If they're, you know they have some sort of surrogate or something.

Speaker 1: 19:24

Tell me about how a gestational agreement would give a little bit more stability if they have some sort of surrogate or something. Tell me about how a gestational agreement would give a little bit more stability, a little bit more 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 in male same-sex couples. Sometimes female same-sex couples want to use a surrogate as well, but I think most commonly it's used with men. So that process and it is a very long, kind of difficult process because there are certain things that you have to file, and I mean you have the initial agreements, right, that is filed before the child is even implanted, Then you can start the process of the embryo transfer and then there is the entire pregnancy. You cannot do anything else during this process while the surrogate is pregnant, until the birth. After the birth, there is a confirmation hearing that needs to happen just to cement those rights, but it is.

Speaker 1: 20:32

I mean, it's a minimum year-long process, not to mention whatever time you're going to spend, you know, finding a surrogate the documentation and you know we have fellow attorneys in the community that we usually refer these things to because they are so meticulous that we want to make sure that it gets done right for our clients and we will usually refer to those experts 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 the day, after you have that confirmation that you are going to have both of the parents be accurately listed for that child be a termination and a second parent adoption. And you know this really provides the greatest legal security for the two parents. That can't be overturned by some sort of extrajudicial or administrative function. And what would a termination and second parent adoption look like?

Speaker 2: 21:48

So a termination, and this is a backup option. If your gestational agreement falls through, for whatever reason, you haven't crossed all your T's, dotted your I's, you can always terminate the surrogate and adopt as well. So that process looks something like your initial paperwork is going to be filed, your petition for termination and adoption. If you need the termination, the court will appoint an amicus in your case, which is an attorney that is appointed to represent the best interest of the children. They kind of serve as the court's eyes and ears outside of the courtroom. So they're going to come and do a visit with everyone in the home Just make sure that it's a good environment for a child to be in. You'll have an adoption evaluation conducted for the same reason, just to make sure that everything is on the up and up. Everyone in the house will have to be fingerprinted and have a background check done, including people 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 living in the house and that's the best option if one of the parents is a biological parent and then the other isn't would be to go through that process, and I think before the show we were talking about it. You know, this is really. This is such a fluctuating area of law, so you always need to go to a family lawyer to get the most up to date state of the art advice, but this is really become 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 I personally have known people who have failed to do second parent adoptions and gotten divorced and not had any rights, not gotten to see their children, their children.

Speaker 1: 23:40

Yeah, um, that's heartbreaking. Yes, yeah, and, and, and it's devastating 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 it you have surrogacy, you have one biological parent.

Speaker 1: 24:09

There's so many scenarios that I really would implore anybody listening to this that is considering having a child and they're in a same sex couple or they have loved ones that are considering this. Get the advice of a family law attorney as soon as possible. But you can have both of the parents. If neither of them is a biological parent, have both of them adopt a child and go through the same process as though you know they weren't a same-sex couple. If they were just adopting a child, it would be that termination and adoption process right.

Speaker 2: 24:36

Right, and it's the same thing. Only now you have two petitioners instead of one.

Speaker 1: 24:40

Yeah, well, overall, this was incredibly helpful. There are again, like I mentioned, so many different nuances and this is such a changing area of law that if you have a specific situation listener or viewer please come and see a family lawyer, come and see Kay, come and see any of the lawyers at Hunt Law Firm. We do consultations on Zoom by telephone at our League City office, at our Katy Cypress Sugar Land office. We'll come and listen to your situation and we'll be able to give you specific advice, depending on what is affecting you and what you need to do.

Speaker 1: 25:24

We also have including some articles that are excellent and very detailed, that are written by Kay, on issues that are affecting same-sex couples, and so if you go to our website, familylawyerkatiecom, and you click the resources tab, and then you click the blog tab and you can even type in the search bar at the top what you're looking for, you're going to find just an enormous amount of information. So, start there. You can set up a consultation on 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 so much for imparting this knowledge and for joining me.

Speaker 1: 26:05

Thank you for having me All right, and we'll see everybody else next time. Thanks for joining.