LGBT Webinar Part 1: Special Issues with Same Sex Divorce

Michelle O’Neil:


Hi Everybody! This is Michelle O’Neil and I’m with O’Neil Wysocki. We are family law attorneys in Dallas, Texas. We are bringing you the first ever LGBT webinar on Texas family law. We're very excited to be here and I hope you enjoy what we're about to present. So here's how we're going to do it. We're going to do four sessions of about 30 minutes each and those topics, the first one's going to be on special issues with regard to same sex divorce. The second one is going to be on the challenges of non biological parents standing in custody. The third one we're going to address the prejudices that some gay and lesbian issues might have in different courts and some tips and tricks on what to do about those. The fourth one is recent case law development in same sex family law issues. So this course has been approved for 2.0 hours of CLE credit from the state bar of Texas with a half hour of ethics credit approved. I will post the CLE number, the Texas CLE number in the comments whenever I get back to it, so watch for that number in the comments. How do you obtain the CLE credit? So this course is free to watch for anybody that wants to watch it. However, if you want CLE credit, there's a link in the event on Facebook and click that link, it goes to the Eventbrite and the fee for the registration for the CLE credit is $20, which is a bargain. So pay the $20 fee and send us your bar number and we will get you approved for the CLE credit. Be sure to comment during each of the sessions so that we know you're out there, we know you're listening and participating so that you can get that CLE credit. We love comments, so comment a lot.


We're going to upload a transcription of the videos after this is over, so you can watch for that. We will also be posting in the comments as this is going some different links and articles and cases for you to look at. Just some additional resources as we're going along talking that might help you if you have some of these issues coming up. Whenever this is all over, we will leave the course up in the Facebook event for a few days, for a while, so that if you missed it or had to pop out at any particular time, then you can catch it and catch up on it later. Whenever we take it off of Facebook, we will be uploading it to YouTube, to our iTunes account, and to our SoundCloud account, so watch for it there as well. I want to introduce the speakers to you very quickly.


My name is Michelle O'Neil. I'm a 27-year family law veteran, I love to use the word veteran now because it sounds better than saying I'm just an old lawyer. So, I've been doing this 27 years. I'm a graduate of Baylor University undergrad and law school and I've been doing family law all these years. I've been an LGBT advocate for many of those years and have several cases of first impression that affect LGBT rights. So, I'm with me today is Karri Bertrand. Karri is a 2018 graduate at the University of North Texas College of Law. She was one of the first night school graduates of UNT’s law school, so we're super proud to have her. She is also a veteran 15-year paralegal, so it’s a little disarming to say that she's just graduated from law school because she brings with her a whole host of experience that assists her in being a great, great lawyer. We're very excited that Karri's going to be joining us. She is actually planning one of the specialties of her practice to be LGBT family law issues. We're also joined today by Nick Rodriguez. Nick is a 2017 graduate of the South Texas College of Law and he is also an Aggie for those of you out there, you can go whoop. He graduated with a Bachelor of Arts in history from Texas A & M university. So, Nick is also making LGBT rights and advocacy one of the issues that he specializes in in his family law practice. They're going to be joining me in presenting to you today in this two-hour long CLE course. Now, I do have to give you a little disclaimer, so forgive me for being a lawyer for just a minute. Nothing in this presentation or these presentations is intended to be legal advice. We cannot substitute our general opinions and thoughts on the law for actual legal advice that pertains to specific situations. So, if you are somebody out there with a particular problem and you have specific questions about how the law applies to you, please go seek your own legal advice that's specific to your situation. We also cannot create an attorney client relationship just because you watch us on this video. So please don't think that we represent you. We also would highly recommend that you seek advice from your own attorneys. So we're just giving general statements of the law and our opinions on the law and those should not be substituted as legal advice. All right, any other disclaimers I need to give? All right, welcome to our LGBT Texas family law webinars series. We'll get started in just a second.


Alright, here we go. This is the special issues with same sex divorce. My name is Michelle O'Neil with O'Neil Wysocki. The law firm of O'Neil Wysocki is bringing you this webinar today on LGBT Texas family law issues. So we're going to talk now about some special issues with same sex divorce post Obergefell. This session is going to be approximately a half hour long and it's approved for a half hour CLE credit and a quarter hour of ethics credit. With me is Karri Bertrand and Nick Rodriguez. All right, so let's just jump right in. Let's talk about Obergefell. So just to real briefly, we'll talk about Obergefell in detail later, but just briefly, Nick, tell me what the main holding was in the Obergefell case.

Nick Rodriguez:


So the court held in that case that the same sex couples have the constitutional right to marry. So basically granting a fundamental right for same sex couples to be wed and they also held that marriage is a right that's recognized across state lines, which is obviously what we wanted in that ruling when that ruling was passed.

Michelle O’Neil:


And so that was the U.S. Supreme court, correct? And that date was June 26th of 2015, which is important. That's an important date because the Windsor opinion was delivered on June 26th of 2013 and June 26 was also an important date in gay rights and gay history for other purposes, which we can talk about later. So excuse me for, I have a little bit of allergies or something going on. So the Supreme Court in Obergefell then basically raised the right to marry for same sex couples to an equal protection status and so now same sex couples are considered to have equal protection status. And that was really the first time in history that the Supreme Court found equal protection status for the same sex right to marry and the prior case, the Windsor decision, that case had some bearing on it, but the Windsor decision didn't go all that way. It didn't go all the way to finding the equal protection across state lines, just for all purposes.

Nick Rodriguez:


Well there’s a little bit of factual background history. Edith Windsor and Thea Spyer, they got engaged back in 1967. They had resided together for five decades, prior to that, they went to Canada and got married in 2007. In 2008, New York where they resided, they ended up filing their marriage license and New York recognized their marriage. Thea unfortunately died in 2009 at the age of 77, so she left her entire estate to Edith and so at that point in time, Edith, when she tried to claim the federal tax exemption she was denied because DOMA, section three of DOMA, defined the term spouse as one man and one woman. So the IRS didn't allow her to take that tax exemption, therefore she owed the IRS $363,000 in estate taxes. And basically the U.S. Supreme court, in that case, they had two issues before them. One was a procedural issue, whether or not there was any standing in the case or for Edith to go forward. And then the other issue was, which obviously they ruled that she did have standing. The second and biggest issue was did DOMA violate the fifth amendment, guaranteed equal protection to the federal government as in regards to the federal government and the court concluded that they did.

Michelle O’Neil:


Okay. So in Windsor, the Windsor opinion then was limited to the federal defensive marriage act and just that one section, found that one section unconstitutional, but only as it applied to the federal law, correct? Correct. And so it did not apply it to the States and Windsor also did not make the States recognize other States grant of marriage to same sex couple?

Nick Rodriguez:


That's correct. And actually, when this ruling came a lot of people within the LGBT community assumed that this was the grand sweeping decision, which it wasn't at that point.

Michelle O’Neil:


Very limited and so then two years later, along comes, Obergefell and we have to make sure we stop and emphasize a lot of people mispronounce the guy's name, but I've actually heard him pronounce it himself and it is Obergefell, with a hard G. So along comes, Obergefell and Obergefell actually was a constellation of cases. It wasn't just one guy, it was what, six cases that were all combined together?

Nick Rodriguez:


Yes. It was six cases that were combined together. There were four states that were being sued at the time.

Michelle O’Neil:


And so there became a split between the courts of, the intermediate courts, over the rights of same sex couples in the application of Windsor, right? And so what did the Supreme court hold in Obergefell?

Nick Rodriguez:


So the two issues that were posed before the court in that case was one, does the 14th amendment require states to issue marriage licenses to same sex couples. The other issue was are state's required to recognize lawful out-of-state marriages to same sex couples. And in both those issues, the court rendered a decision in the affirmative. So they said yes, in both scenarios we affirmed that this is the way it should be.

Michelle O’Neil:


So bringing that forward then, in 2015 so now marriage between same sex couples is legal, I guess you would say. But an interesting little nuance of Obergefell was that they actually declared, well, Windsor and I guess Obergefell both, declared the defensive marriage acts unconstitutional. And so the effect that that has on marriages that existed at that time. So where we're going with this is we're going to talk about like what's the effect on marriages? There were people that were already married before the Obergefell opinion came out, some of them lawfully in their states. But in other states, like in Texas, Texas DOMA had not been ruled unconstitutional and still existed. So the Obergefell opinion then as of June 26, 2015 found there to be legalized, same sex marriage. Karri, what's the effect on the marriages that existed prior? Is Obergefell retroactive or what's the right terminology there?

Karri Bertrand:


That’s a very good question and I think it's one that's still kind of being sorted out in courts across the country. In Texas, because we have informal marriage, we have that extra complication I guess of there could have been people who were married informally and then once Obergefell came out, they could be married legally. And a lot of people were like, do we need to go get married? Are we still married? And then there's the issue of people who didn't realize they were informally married and went and married other people. And so you get into this like bigamy issue. I think it's been a bit of a mess in a lot of ways and you know, different judges here in this area have presented CLE’s on it and have said, Hey, we got to see kind of what the legislature is going to do to clean this up.

Michelle O’Neil:


So I guess whenever I've done the research and kind of gone through my mental gymnastics over it, it seems to me that whenever the Supreme Court declares a law unconstitutional, it’s as if the law never existed and so the legal term for that would be void ab initio, which means that it's as if the law never existed in the first place. So if DOMA never existed in the first place, then there could never have been the impediment to same sex marriage, which means on the quote unquote retroactivity issue, actually, there's really no question of retroactivity because it's as if the law that declared the act illegal never existed. So I guess my opinion is that whenever we use the term retroactivity, that's actually a misperception because there's not even a question of retroactivity. There's not a question of whether it is or is not retroactive because the law was declared unconstitutional and void ab initio. So to me the answer is simply a yes, marriages or informal marriages that existed prior to the date of Obergefell are automatically recognized, right? Is that the right way to say it?

Karri Bertrand:

I think part of the problem too though is establishing informal marriage in Texas, particularly the prong of the agreement to be married, when you did not have the ability to be married. There were a lot of people who did not make that agreement.


Michelle O’Neil:

And that's certainly the argument that the conservatives or the people arguing against informal marriage have made, is that how could a couple be informally married in Texas prior to June 26, 2015 if they could not legally agree to be married. But I think so far at least, the majority of judges and even administration, marriage licenses, the informal marriage licenses, all of those sorts of things have actually been fairly consistent in finding that they can legalize the marriages that existed prior to Obergefell. It was interesting. I found one case and it's actually out of the Dallas trial court, Alberts vs Richardson where the district court held that the marriage prior to June 26, 2015 was not valid and recognized it only starting as of June 26, 2015. And that was the only instance that I could find, I'm sure there's some others, but it was the only one that I could find documented where there actually was a judge who ruled that Obergefell was not retroactive. That case did not go up on appeal as far as I can tell, so I'm not sure that that's really anything other than for discussion purposes. But even when you look at the tax laws, the IRS is allowing couples that were married before June 26, 2015 to file amended returns. The district clerk's offices around the States are allowing people to file their certificates of informal marriage with dates that are prior to Obergefell and recognizing those.

Karri Bertrand:

Do you think some of the challenge there is determining the date? Like how do they determine how far back? What date does it start?

Michelle O’Neil:

Yeah, so let's talk about informal marriage. Just let's stop and do that, so what are the prongs of an informal marriage?

Nick Rodriguez:


The easiest way for me to remember is the couple cohabitated, they had an agreement and they held out that they were married.

Michelle O’Neil:


So agreement to be married is obviously…

Karri Bertrand:

In a state with informal marriage.

Michelle O’Neil:

Well, I think it's actually the code says in Texas, right? So you have to live together in the state of Texas. You have to tell other people that you're married, and you have to agree to be married. And you know that informal marriage law actually applies to heterosexual couples or now same sex couples. So that's not just a special law and then there's actually what we sometimes loosely term, although this isn’t the correct term, the informal divorce. And so what is that? So that's where you go for two years separated after. So for two years you've been separated from the other person. Then there is a presumption that there was no agreement to be married. And so what bringing that forward as it applies to some of the same sex couples, what we've been finding is that there are a lot of people that live together that maybe look to God even before the laws of the United States allowed them to be married. Just look to God and decided they were going to be married where the laws of the U.S. said they were not, they called themselves married. They held out as married, they live together and some of them in Texas and so they were married as of whatever that date is prior to Obergefell. Then we have, as Karri alluded to, we have some people that split up, maybe they changed their mind, they didn't think they were married because the law didn't say so and they moved on to other relationships and maybe got into possible informal marriages with other relationships. And that does create a problem of bigamy, potentially, because of the multiple marriages. It also creates a lot of other problems. I mean a problem of community property and which presumption of marriage applies. In other words, that generally speaking, the first in time marriage or I'm sorry, the most recent marriage is presumed valid. So the prior marriage would be presumed invalid and so there would be problems with that. So from an evidentiary perspective, if you are talking to a potential client who is presenting you with this question of am I or am I not informally married, what are some of the things that you would look for in advising them whether to go forward with an informal marriage claim or a suit for divorce?

Nick Rodriguez:


So for me, what I like to tell clients is I need probably some witness statements from people that were around them at the time they were holding themselves out to be married. Some other things could include lease agreements that they signed together, filing joint tax returns, joint bank accounts, just evidence that shows this couple was, for all intents and purposes, married.

Karri Bertrand:


Cohabitation agreements can be executed. You can put the other party on your health insurance that way, ring exchange. Some couples have actually had a ceremony that looks a lot like a marriage ceremony, anniversary cards.

Nick Rodriguez:


Speaking of the ring exchange, I just wanted to make this a fun factual note. Edith and Thea Spyre in the Windsor case, they actually exchanged pins because at that time in 1967 when they did get engaged, it was very much forbidden. so they had to hide it with a circular ring that was a pin they put on their lapel.

Michelle O’Neil:

Oh, that's so sweet. I like that little fact. So you know, one of the challenges in same sex couples with the informal marriage claims is that, they may not have filed the joint tax returns because the IRS wouldn't allow that at the time and when you look at cohabitation agreements, if it was a domestic partner agreement, it may actually stipulate that they weren't married. So those are things that you actually need to look for to the contrary. Health insurance for me is the one place where I would really look because that was kind of the reason a lot of people would move forward with trying to have same sex marriages was to get health insurance benefits. And so that's health insurance, car insurance, any kind of insurance is a really good place to look for evidence that would help prove that they actually were married. Because what you find a lot of times in these informal marriage claims is one person will say, yes, we agreed to be married and the other personal deny the agreement. So that's when you have to have independent evidence to either corroborate the agreement, illustrate the agreement or disprove the agreement. I think for me, I think Christmas cards, Valentine's cards, anniversary cards, those are the place where you're gonna find the most ripe evidence. The most likely place to find some of that intent evidence of the intent to be married. You might find the Valentine's card, to my loving husband or to my loving wife and you know, those are the places where you're going to find references to those key terms that will help you prove an informal marriage or to the alternative might help you disprove it if they didn't use those type of words.

Nick Rodriguez:


And that goes without saying, like you spoke earlier about the presumption against informal marriage of the two-year requirement. So the same evidence that you would use to prove informal marriage, the same evidence you would use to rebut that presumption.

Michelle O’Neil:


Right, and a lot of times, whether it's the same sex couple or otherwise, these types of cases are very heavily litigated because they have such broad sweeping affects on property and all sorts of issues. We'll talk about kid issues in the next section, which is a little bit different as to how marriage applies to the kid issues, but it is place that is very hotly litigated. In fact and it's very expensive to litigate an informal marriage claim because the trial of a divorce where you're trying to prove an informal marriage claim is actually a bifurcated trial. And so that means you have to try to a judge or a jury, it is a jury issue in Texas, whether or not there was an informal marriage and get a decision on that and then you have to come back and have the final divorce trial later because you have so many things that flow from that decision, like community property rights that would be affected that you can't have it all in one trial together. So those are bifurcated trials which greatly increases the cost of litigation. Karri, are there things that you would look at from that cost of litigation standpoint that you would advise a client when they're trying to decide whether to look at the informal marriage or not as to whether to make that claim?

Karri Bertrand:


Absolutely, kind of like you'd analyze any divorce case coming in. What are the assets and liabilities? Is it worth, is there an estate here that we need to try to preserve to protect one parties community property that we're trying to make community? I think before someone jumps into that you need to actually have something that's worth dividing.

Michelle O’Neil:

Like a cost benefit analysis.

Karri Bertrand:

Exactly. Because like you said, it is very expensive. And even just the evidentiary portion of proving the informal marriage, you might be looking at phone records going way back, text messages. There's no quick and easy way to do it and it's never going to be cheap.

Michelle O’Neil:


And couldn't there be some limitations in the availability of evidence depending on how long the relationship had been?

Karri Bertrand:


Absolutely. I'm guessing there would be limitations. Not everyone saves those cards.



Michelle O’Neil:


So what about a civil union? So some States prior to Obergefell had a thing called a civil union that wasn't a marriage, but it was a partnership of sorts recognized by the state. So what do you think the effect is? I don't know that there's a bright line answer, but what do you think that we would do with a civil union? Would it be a marriage? Would it be an informal marriage?

Nick Rodriguez:


I think it would be more evidence of an informal marriage than anything else. I think a civil union, they require some sort of declaration, so I would say it's more informal and it still has to be proved up with evidence.

Karri Bertrand:


I think kind of like the retroactivity issue, it's still being worked out in some courts. I don't think it's being uniformly applied.



Michelle O’Neil:


Yeah. As far as I know, like I said, I don't think that there's an answer to that question at least in Texas law. In other states there may be, but in Texas law, I don't think we've had a case go up on appeal that has addressed the question of a civil union prior to Obergefell. What is it? Although I think some other states have likened them to marriages, to formal marriages. But I agree that at a minimum, it would be evidence of an informal marriage, although I think if I were arguing the other side of that, the argument would again be there wasn't an agreement to be married because you agreed to be civilly unioned. So I think that it's an open question that it's something that's definitely out there for a decision at some point in the process. Maybe there'll come a case along that has that question in it. Lets talk about premarital agreements. So of course now, after Obergefell under the Texas statutes, same sex couples can enter into premarital agreements, but what about premarital agreements that were entered into prior to Obergefell?



Karri Bertrand:


I think a lot of those couples have had trouble enforcing them because they weren't premarital agreements. There was no marriage…

Michelle O’Neil:

at least entered under Texas law.

Nick Rodriguez:

Well cause a statute for premarital agreements requires or doesn't require consideration. And I think maybe that might be an issue that couples are finding is that where is the quid pro quo with their contract when it wasn't statutorily authorized at the time so..

Michelle O’Neil:


And then I've even seen some cases where you have premarital agreements entered into under another states laws that allowed same sex marriages and marriages entered into there and then they come to Texas and then have to dismantle everything. So those are definitely questions and they create a lot of litigation issues and so as Karri was saying, I think that you have to do a cost benefit analysis and look at the premarital agreement and decide, is this worth fighting over? Is it a contract? Is it not? Are you gonna raise defenses? The defenses to a premarital agreement under Texas law are so limited, so then you have to look at when was the premarital agreement entered into, which law applied in Texas under that agreement, is there a choice of forum clause? Because if it was a premarital agreement entered into in another state, it may choose the other forums laws. And so that creates quite a complication when you get divorced in Texas. All right, moving on to ethical issues. Let's talk about the ethics a little bit. Karri, what do you think about the potentiality of fraud claims whenever you're now trying to establish and backdate a marriage, but in the past you've been inconsistent in maintaining that you're married?

Karri Bertrand:


Obviously it's a problem for the court. It’s a problem for any other party that might be effected if there's the existence of an informal marriage, like an insuring authority or health insurance. Anything that would make it a marriage or not a marriage is going to be affected by that analysis. And I'm sure there's part of the reason, like there's a big backlash to not have the retroactivity is that fraud element and how that might affect.

Michelle O’Neil:


The IRS has taken care of a little bit of that by allowing people to go back and amend their returns to change their status. So the tax fraud issue may not be quite as big a question as we initially after Obergefell feared that it would, but certainly there could be some insurance questions that could come up from claiming you're not married and then all of a sudden you're married. What other ethical issues would you advise a client as far as looking at, in looking at whether to establish that informal marriage and moving forward in a divorce?

Karri Bertrand:

separate property claims.

Michelle O’Neil:

Yeah, so in Texas community property, Texas is a community property state. And so that means that everything that was gathered together “during the marriage” is community property and anything that you had before the marriage or that you got through gift or inheritance is separate property. That's an over-simplistic definition, but basically what we work with. So when you're back going back and looking at what's the date of marriage, that's actually the date for starting to accrue the community property. You’ve alluded to this Karri before, but in the cost benefit analysis of whether to go forward with claiming a marriage you have to look at, is it worth it to go through all the litigation and the attorney's fees cost that that would take to prove the marriage. But then I think you also kind of conversely from an ethical standpoint, you look at it and advising the client of is this going to create community property? Is that what you want? Is that the best thing for you?

Karri Bertrand:


It's a very good point.



Michelle O’Neil:


You also have governmental benefits like social security, health insurance and that actually how we've gotten to a point of having a lot of the litigation that's come about like the estate taxes with the Windsor case, but that's also a place where you would look at, for example, with social security, is backdating the marriage going to enable the other spouse to qualify for your social security under those rules, health insurance, all of those kinds of issues. To me, there's a lot more that goes into the advice to pursue proving up an informal marriage in a divorce case than just the simple issues of divorce or property. And then of course alimony. Alimony in Texas is based on there being at least a 10-year marriage and then there's different amounts and percentages based on years of marriage, all the way back from that. So if you're looking at advising a client about proving up an informal marriage for a divorce, there may be a question of whether that date of marriage is going to enable the person to face or to make a claim for alimony or have to defend a claim for alimony in Texas because our statutes are so limited. But if you get back in there in that window of time that that may be something that is a necessary to advise them on.

All right, so bringing it all together, what does it mean to a divorce proceeding? So obviously in order to get a divorce, you have to have a marriage. If you don't have a marriage, then you don't get divorced. So that's why we're talking about proving up the informal marriage in order to get divorced and obviously if you're ceremonially married, you have to get divorced because in the state of Texas you are married until you are divorced. So if you did agree to be married and hold out to others and live together in the state of Texas and therefore meet all those elements of an informal marriage, Tada you're married, then you must get a divorce in the state of Texas and and if you're formally married, you must get a divorce in the state of Texas to break up your relationship. So those are the reasons why going into to get a divorce, it can be very costly and very expensive and you don't necessarily want to spend all the money to be that test case on any of these unresolved issues, right? All right, any final thoughts?

Nick Rodriguez:

Looking forward to the next segment!

Michelle O’Neil:

All right, so y'all stay tuned for the next segment. We're going to take a little bit of a break and the next segment will be challenges of non-biological parent standing and custody. So we'll be right back. Keep in mind that this is a webinar that's aimed at attorneys. This is for continuing legal education. If you're out there watching this, this webinar and you're not an attorney, we welcome you to watch it. But remember that we are not giving you any specific legal advice. We cannot comment on any specific case or situation without knowing all the facts. So if you need legal advice, this webinar is not a substitute for legal advice. Please, please seek the advice of a lawyer as to your specific situation and get specific advice to that. Because if you rely on just what we're talking about here, we're being general, we're talking about general legal principles that may not actually apply to your situation. This is for continuing legal education only and we cannot create an attorney client relationship just through the video camera. Okay. Thanks.