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.