Monday, December 9, 2013

Legal Protections of Marriage Not Readily Available for Some Couples in Texas (Part II of II)

In last week's blog, we discussed the difficulties that are faced by some couples who are in a marriage relationship but did not have a legally recognized ceremonial marriage.   That blog discussed "common law" marriage in Texas.  The blog also detailed some situations in which the partners may not even know for certain whether or not they are "common law married".

This blog will discuss another situation in which the law is not always clear-cut, and does not offer the same protections to all: Same-sex couples in a long-term, committed relationship.

Although I am well aware that Texas law does not recognize same-sex marriage, for the sake of clarity I will use the term "marital relationship" to apply to a same-sex couple committed to each other, and behaving "as if" they are legally married. 

Some very interesting law school exam questions and bar exam questions are surely written about the "conflicts of laws" questions.   Consider this, same-sex couples are legally able to be married in some states, have domestic partner status in others, and have no legal relationship to each other in other states. Federal law allows same-sex couples who have been legally married in jurisdictions that recognize same-sex marriage to file "married".

Since all jurisdictions are not "on the same page", there have been plenty of confusing situations. For instance, how does a couple that has been legally married get a divorce if they live in a state that does not permit same-sex divorce?   This, and other questions are going through the court systems as I write.  We'll just have to wait and see what 2014 brings.  

But, back to the here and now and the things we can do something about.  Just like the heterosexual couples in last week's blog, same-sex couples in Texas need to be aware of their legal options and the things that can happen.   

Here are the most common situations in which questions/issues may occur for a same-sex couple in a marital relationship, and where it is important to plan ahead: 
  1. The couple is purchasing property together, or co-owns property or accounts;
  2. The couple is separating and realize that they don't know how to legally split their property;
  3. One person is ill and unable to speak for him/herself and the other partner needs to have legal authority to do so;
  4. One person dies and the surviving partner needs to have legal title to joint assets or needs to be able to inherit them (especially if challenged by others).
  5. Anytime children are involved.  (adoption, visitation, support, authority to seek medical care, authority to attend school activities or be an emergency contact, seeking of parental rights for one of the partners, pre-birth arrangements such as sperm donor contracts or gestational agreements).
It is important for each person in a relationship to know and understand his or her legal status and where he or she stands in relation to property ownership and other rights.   No one should devote years to a relationship, help accumulate property, and worry about being left penniless if their partner dies, nor should partners have to worry about proving their legal relationship to each other during a catastrophic illness.

There are ways for same-sex couples to co-own property, create a family, designate each other as having legal authority, and bequeath each other their property.   It is important for all couples to visit these issues, but it is especially important for same-sex couples since the state law does not provide the same protections that opposite sex couples often take for granted. 

- Laura Kalish 

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