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Would gay marriage in Texas alter property division conventions?

With several states legalizing gay marriage recently, some in Texas are wondering if increased acceptance of the practice could lead to same-sex unions in the Lone Star State. Maryland, Maine, and Washington have all approved gay marriage in the past several weeks, and the U.S. Supreme Court is poised to hear significant cases on the subject in the near future.

While it is not sure exactly where Texas public opinion stands on the matter -- as our readers know, our state is geographically vast and demographically diverse -- one thing seems clear: unless major changes are made, property division in Texas will likely remain the same.

In 2005, Texas voters approved a state constitutional amendment defining marriage as a relationship between a male and a female. However, survey data from the University of Texas and the Texas Tribune indicate that a majority of Texans would not oppose same-sex marriages.

This year, the highest court in the U.S. is expected to rule on California's constitutional amendment that also limits marriage to male-female unions. If the Supreme Court rules against the amendment in California, the decision could have ramifications in other states as well.

With so much speculation about gay marriage, some might wonder if the divorce process will change along with marriage. However, unless new legislation emerges, property division in Texas is unlikely to transform.

For instance, Texas law recognizes both separate property and community property. Despite popular misconception, judges cannot take separate property from an individual during a Texas divorce. However, the man or woman must clearly and convincingly demonstrate that they acquired an asset separately, usually either before the marriage or as a gift.

Even if the genders of those involved in determining separate property were to change, the same principles would apply, making it important for any married couple in Texas to be familiar with the property division process.

Source: KUT News, "Could same-sex marriage come to Texas?" Nathan Bernier, Jan. 2, 2013

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Attorney Christine K. Lincoln

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