Impact of Marriage Equality CLEYesterday I was honored to speak at the State Bar of Texas’ LGBT Section’s Impact of Marriage Equality on Texas Law continuing legal education seminar. My topic was Divorce, Custody, and Other Emerging Family Law Issues After Obergefell. My co-presenter was the most awesome Karen Langsley from Austin. One of the biggest issues that we discussed is the issue of retroactivity of the Obergefell decision. The US Supreme Court decided that the laws prohibiting same sex marriage were void ab initio. That means “void from the beginning” so it is as if the law never existed in the first place. (Here’s an interesting blogpost about the legal definition of void ab initio.) This is important in discussing the date of marriage, because the date of marriage impacts many issues in the context of divorce. Once issue would be when community property began accruing. Also, the date of marriage determines whether a spouse is entitled to post-divorce maintenance support — 10 year marriage is the key here.

Another issue we discussed in the presentation was the presumptions of parentage in the marriage between a same sex couple. This is particularly important for a lesbian couple, where one spouse is the biological parent of a child born during the marriage. There is a presumption that children born during a marriage are the children of both spouses. Of course presumptions are only that — they can be rebutted. But, it is a good starting place. We also discussed that for same sex couples — with or without a marriage — the presumptions applicable to paternity findings are equally applicable to maternity findings. So, for example, where a man might make a claim for paternity based on the holding out paternity findings during the first 2 years of the child’s life, a non-bio mom could make the same argument. My co-presenter had a great quote about this — “It is not apparent who is a parent!” Definitely muddied water…

Read our full article from the presentation yesterday here: Divorce, Custody and Other Emerging Texas Family Law Issues After Obergefell.

 

 

 

Print:
EmailTweetLikeLinkedIn
Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.