Gay and Cohabitating in Texas? You Just Might Need a No-nup

Move Over, pre-nups and post-nups. There's a new nup in town. I've named it the no-nup. Before I explain who needs it, let me quickly rule out who doesn't. If you're gay and living with your significant other, and you and your partner either (a) already got married in a state where gay marriage is legal, or (b) want to immediately get or be married here in Texas, congratulations! You do not need a no-nup. Things are now crystal clear for you, thanks to the Supremes.

But if you're gay and living with your significant other and you DON'T want to be married at this point in time, the Supreme Court's recent decision may have made things a little murky for you. That's because Texas is a state that recognizes informal or "common law" marriage.

To be informally married in Texas, the Texas Family Code provides that a couple must do the following three things:

1. Agree to be married;
2. Live together in Texas as a married couple after making such an agreement; and
3. Represent to others that they are married.

Proof of these three things is all that is needed to establish an informal marriage. And once a couple is informally married, they are every bit as married as a couple who takes the formal route of hiring a wedding planner, getting a marriage license, and shelling out thousands of dollars for their big day.

Formally married and informally married couples enjoy exactly the same advantages and disadvantages of being married, including this: If an informally married couple later wants to part ways, they will have to go through the exact same divorce process as any other couple. In other words, while they may not have kicked off married life with an event that cost tens of thousands of dollars, they may well find themselves ending their married life with one; because while you can get informally married in Texas, you cannot get informally divorced.

So, what does all of this mean if you're gay and living with your significant other, post the Supreme Court's decision last week? Whether or not you knew it or intended it, you may already be at risk of being "deemed" married in the eyes of the law.

You may be thinking, "But wait--the very first factor is I have to agree to be married. And if I didn't ever agree, how can I be married?" Texas case law on informal marriage is full of examples of people who did not see eye to eye on whether they had an agreement to be married. Whether there is sufficient proof of such an agreement (as well as the other two factors) becomes a question of fact for the judge or jury to decide.

The question of whether a couple is married is not just a matter of social status. The following hypothetical demonstrates what's at stake: Let's say Ben and James moved in together before the Supreme Court's ruling on gay marriage. They continued to live together after the Supreme Court's ruling, but they never got formally married. Over the years, James buys a few rental properties with his extra income. Fifteen years later, Ben and James split up. Ben claims he and James are informally married and that the rent houses are community property and therefore half his. But James claims the houses are all his because they were never married and therefore there is no community estate at all.

Or rather than splitting up, assume James got killed in a car accident and he didn't have a will. Further assume James never had children, didn't have brothers or sisters, but his parents were still alive. Whether the rent houses would pass to his parents or to Ben depends on whether or not the two were married. On top of grieving the loss of the man he considered to be his husband, Ben could find himself in a legal battle with James' parents. As these scenarios make clear, ambiguity surrounding one's marital status can turn difficult emotional situations into expensive legal battles.

At first blush it may appear that after the Supreme Court's ruling, cohabitating gay couples are in no different a position than cohabitating straight couples when it comes to the risk of a disagreement over whether they're informally married or not. But there are factors that make the situation for gay couples less clear. First, there's a problem with nomenclature. With straight couples, the terms "husband" and "wife" are typically used only if they are married. If a man and woman refer to each another as husband and wife rather than boyfriend and girlfriend, that's evidence of both an agreement to be married and holding themselves out as being married--two out of the three necessary factors to establish an informal marriage.

But with gay couples, the term "partner" is commonly used, whether the couple is married or not. One member of a couple may use that term thinking that he or she is married, while the other may have thought they were in a long term, committed relationship, but not necessarily married. This is exactly the type of uncertainty that leads to disputes that end up making case law.

Also, consider this: Up until the Supreme Court's ruling last week, if a gay couple had a commitment ceremony or a wedding in Texas, while the ceremony had emotional and social significance, to be sure, it had no actual legal significance; and both members of the couple knew this. Whether each member of the couple would have gone through with the ceremony if they had known then that it would end up resulting in a legal marriage--complete with community property and community debt--is a matter of speculation. The answer would likely vary from couple to couple and person to person.

But after the Supreme Court's ruling, a commitment ceremony or a wedding that happened even before the ruling presumably serves as evidence of an intent to be married. That becomes a problem if one or both members would have structured things differently (like, for example, by getting a prenup) had they known that the ceremony would wind up having the full legal effect of a marriage.

And that's where a no-nup comes in. A no-nup is a notarized declaration by one or both members of a couple stating that there is no agreement between the two of them to be married. A no-nup cannot prevent a former partner from claiming that there was in fact an informal marriage; but it can serve as an important piece of evidence establishing that there was no such agreement at a particular point in time, at least by one member of the couple.

In the wake of the Supreme Court's ruling, if you're gay and cohabitating in Texas with your partner, and you do not want to be deemed married, you should execute a no-nup as soon as possible. Even if your partner won't sign it, signing one on your own is still better than not having one at all. The legal landscape has changed, and a written declaration that eliminates any doubt as to what you (or you and your partner) consider your relationship status to be can be very valuable in the future. Having one won't guarantee that you'll enjoy smooth sailing, of course; but not having one can definitely increase your chances of finding yourself in very rough waters.