Rights and Responsibilities of (Same-Sex) Marriage

Although same-sex marriage was already legal in 37 states ahead of last weeks landmark ruling from the Supreme Court, the impact felt across the media landscape is stunning. Whether you celebrate or scorn, the legality of the matter is legit and brings to light new legal standing for the LGBT community.

According to the United States Government Accountability Office (GAO), there are 1,138 statutory provisions in which marital status is a factor in determining benefits, rights, and privileges. These benefits include employment assistance for spouses of military service members, immigration benefits, next-of-kin status for emergencies, access to ‘family-only’ services like club and organization memberships and divorce and widow rights. Prior to the Supreme Court’s ruling, many of these rights had been solely reserved for traditional marriages, depending on your state of residence.

Consortium and the Legal Impact of Infidelity

Many states, Texas included, call for a ‘right of consortium’, which includes the right of sexual relations, love and solace. Personal injury cases may involve the loss of your relationship with your spouse, and Texas law allows recovery for loss of consortium in certain (but not all) situations. And although adultery in a marriage is not a criminal offense in most states, it violates the right of consortium and can affect the outcome of a divorce settlement as a consequence, especially if specifically referred to in any prenup agreement.


For several years now the federal government has recognized the immigration rights of same-sex couples, but prior to the SCOTUS ruling a same-sex couple may have had to travel outside of their home state in order to achieve a legal union and thus apply for legal immigration status. This is now a thing of the past as all states are legally obliged to recognize the marriage of same-sex couples.

Property Rights

Property acquired during a marriage is never considered solely owned by one person, even if only one name appears on a title. Texas is a community property state, which means that most property acquired during a marriage belongs to both spouses and must be divided at divorce. In contrast, each spouse gets to keep his or her separate property if the marriage ends.

Prenuptial Agreements

In short, a prenuptial agreement in Texas is an agreement between two people prior to entering into a lawful marriage that contractually determines property issues between the spouses-to-be. The Texas Family Code allows parties to enter into a prenuptial agreement, or prenup, before marriage and makes those agreements enforceable so long as they meet the requirements set out in the Texas Family Code.

A prenuptial agreement stays in effect during the marriage and in the event of divorce, will govern how property may be treated during the divorce. The prenuptial agreement can also govern certain issues that arise during a divorce but not during the marriage, such as spousal support or alimony.

The law surrounding marital rights and responsibilities is complicated and the facts of each case are unique. For more detailed, specific information, please contact the offices of RGP.

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