Texas Bar Journal February 2023

Same-Sex Couples

Tips for practitioners navigating family law issues for their clients

Written by Matthew P. McChesney

two gold wedding rings and a brown gavel laying on a blue law 

Obergefell v. Hodges did not create anything new; it merely ended a season of prohibition1 following changing attitudes and customs in a line of cases back through the middle of the past century. Loving v. Virginia muted race-based laws on prohibited pairings. Lawrence v. Texas muted sex-based laws on prohibited intercourse. State v. Limon equalized differing age-based laws on consent for teen lovers. On December 13, 2022, President Joe Biden signed the Respect for Marriage Act. Marriage “on the same terms and conditions” for everyone appears here to stay. Still, for a generation of those together long before Obergefell, a hybrid approach to asset characterization is sometimes required.

The community estate, that part of the property subject to division by a court on divorce, is created on the date of marriage. That date also delineates separate property.

The older, long-term same-sex couple who ceremonially married only after Obergefell will often have two or more 92 Texas Bar Journal ? February 2023 anniversaries and a lifetime of property. Consider the couple, who in close supportive company, privately acknowledged their commitments and exchanged rings in the 1970s. This couple might have collected a variety of state-sanctioned status relationships akin to marriage—the civil union, the reciprocal beneficiary status, and the domestic partnership.

Establishing the date of marriage is important when applying family law principles to analyzing the property of these couples through that lens. However, in many instances, June 26, 2015, does not solve the problems or render just results for the couple who has spent the majority of their lives together before Obergefell when figuring asset characterization only within the limits of the Texas Family Code.

A special grace of the Lone Star State, but still an imperfect curative device for these couples, is the informal marriage statute.2 A marriage established informally, also called a common-law marriage, once established, is of equal dignity and effect as a ceremonial marriage and can only be dissolved by death or divorce.

For couples wanting to confirm an accurate date of marriage retroactive to the date of their actual commitment, executing a Declaration of Informal Marriage and filing it with the county clerk can accomplish this purpose. The Texas Bureau of Vital Statistics revised the form the same month and year of the Obergefell decision to accommodate them.3 Following the recording of the declaration, the clerk can issue a certificate of informal marriage. The executed declaration or the certificate provide prima facie evidence of the marriage of the parties.

Practice Tip: In a suit for divorce, the party requesting temporary spousal support during the pendency of the suit must first secure a prima facie finding that a common law marriage exists.4

In a contested environment on separation in which one party seeking to retain ownership to joint assets denies a marriage relationship, a deep dive into a marriage analysis into these lives begins with the “three unities” of common-law marriage, which must be present at the same time: The couple: 1) agreed that they were married; 2) lived together in Texas as spouses; and 3) held out—represented to others that they were married.

The agreement is the most important and the holding out is of special difficulty for many couples. Agreement can be proved with testimony, cards and letters, and family photos. Holding out is a special problem for the older couples because in the not-so-distant past, a person who said, “This is my husband” could have gotten a man punched in the face, ridiculed, fired from his job, refused a promotion, and excluded from clubs, churches, and the broader family. With violence, social ostracization, association with HIV in a time of crisis, and lost opportunity running counter to any desire to be open about their lives in the era of the closet, and in the time before PrEP5, not all of these people felt safe holding out, because to hold out was to out yourself as gay. Many denied it.

Practice Tip: The existence of an informal marriage is a fact issue for a jury on a preponderance standard. Ask veniremen who among them opposes same-sex marriage and on what grounds. Ask them to stand so that they may be counted to be excused. Ask them to stand so that the people seated can see the intimidating shadow they cast and so the seated can better understand how hard it is to hold out when your peers in your community feel that way.

Find holding out evidence in insurance disclosures, wills, tax returns, their parents’ public obituaries, witness interviews, anniversary party and ceremony photos, menus, orders of service, social media, or even the caterer’s bill. Look also to cultural customs—exchanged rings are visible public gestures of one’s betrothal or marital status. Your women clients may have photos from Hawaii—flowers behind the left ear mean married and flowers behind the right ear mean single. The hodgepodge of domestic and foreign status relationships may be of no or little legal effect, as each they are, but they certainly demonstrate some measure of agreement and some measure of holding out with a public act.

Practice Tip: In a controverted environment consider moving for a bifurcated trial setting. First establish the marriage and then divide the property. Remember that the filing of a counterpetition admits the marriage; if your client denies the marriage, do not file one until the appropriate time.

What if common-law marriage doesn’t solve your client’s problem or only partially solves it? Suppose a common law marriage was never agreed or cannot be established as the cohabitation was out of state, but Mark and Steve6 spent decades together and made investments together taken in the name of only one of them. Is the law powerless to adjudicate the rights of each party as to the property acquired during that time as it falls out of the marriage rules of the family code?

Fortunately, where there are limits in the family code, there are remedies elsewhere. In a case decided in 1982, after Aldean Harper tried to retain assets jointly acquired over a relationship spanning two decades, her partner Jo Ann Small sued to recover title to her share of assets, or in the alternative, to get an accounting.7 The 1st Court of Appeals in Houston looked to precedent and acknowledged the very human problem before it to solve. It observed that the Texas Supreme Court recognized the property rights of Margreth Williams, who, in the second decade of our statehood, in 1859, “entered into a marriage, in form” with Thomas Jefferson, a man married to another woman, after he in 1905 tried to eject Margreth and their children from their land with nothing.8

The unmarried—whether they couldn’t be married, or neglected to get married—are not powerless to enforce rights to jointly acquired property. Small sued, in the alternative, for breach of an oral partnership, partition and accounting with respect to joint ventures, and sought recovery via imposition of resulting trust and constructive trust. The law of these things applies to opposite-sex couples and same-sex couples in the same manner, and they are powerful, flexible, and useful tools to avoid the unjust enrichment of the one claiming the “it’s in my name only” higher ground. Each of these remedies comes with their own standards of proof and their own remedies in the common law tradition. The remedies are flexible, discretionary, and not unlike the traditional equitable rules associated with partition and reimbursement.

When plaintiffs pursue their interests under partnership and joint venture theories, it’s instructive to look to the elements of partnership and joint venture, which can be found reiterated in the partnership statute.9 It’s important to note that those are not exhaustive. The Legislature, as it did in the family code reimbursement statute, indicates that the list of factors enumerated “includes,” which it defines as a term of enlargement, not of exclusion.10 In the absence of a community estate, sometimes you can identify a divisible “community of pecuniary interest.”

In instances where there is an identifiable res in need of title correction, courts can find a resulting trust where one party provided the consideration, but title was taken in the name of the other. If a court finds that there is a breach of special trust in a confidential relationship, the constructive trust has been effective to restore expectations of title in numerous reported instances.11

In a time when the Respect for Marriage Act is law and marriage “on the same terms and conditions” for everyone appears here to stay, I will also say that establishing a marriage by conduct and your client’s eligibility for common law remedies is a pleasure to present at the courthouse. Instead of the too-common divorce presentation of evidence of the other’s flaws and bad behavior, the proof at these trials is the goodness that was—the trust, confidence, mutual support, kindness, and the love of a life together. TBJ

1. Texas Constitution, Article 1, Sec. 32; see also Texas Family Code 6.204(b).
2. Texas Family Code 2.401.
3. Texas Family Code 2.004; VS-180 Rev. June 2015.
4. Ex parte Threet, 333 S.W.2d 361, 364 (Tex. 1960).
5. PreExposure Prophylaxis (PrEP) refers to several commonly available modern medicines used with near perfect efficacy at preventing transmission of HIV.
6. Steel Magnolias (1989), Tri-Star Pictures.
7. Small v. Harper, 638 S.W.2d 24 (Tex. App. 1982).
8. Hayworth v. Williams, 116 S.W. 43 (Texas Supreme Court 1909).
9. Texas Business Organizations Code 152.052.
10. Texas Government Code 311.005 (13).
11. Andrews v. Andrews, 677 S.W.2d 171 (Tex. App. 1984); see also Harrington v. Harrington, 742 S.W.2d 722 (Tex. App. 1987); see also Aaron v. Aaron, WL 273766 (Tex. App. 2012); see also Graham v. Turner, 472 S.W.2d 831 (Tex. App. 1971); In re Marriage of Braddock, 64 S.W.3d 581 (Tex. App. 2001).

Headshot of Mattew McChesney who is wearing a grey suit and black 
tie standing in front of a beige backgroundMATTHEW P. MCCHESNEY practices family law in Austin and Central Texas.

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