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What You Should Know About an LGBTQ Divorce in Virginia

The first legally recognized same-sex marriages occurred in Virginia on October 6, 2014, after the Supreme Court declined to reconsider the ruling of the Fourth Circuit Court of Appeals in the case Bostic v. Schaefer, in which the Fourth Circuit held that Virginia’s ban on same-sex marriage was unconstitutional.  In declining to hear the case, the Supreme Court essentially said that the Fourth Circuit Bostic opinion was the final word on the matter.  The first same-sex courthouse marriage in Virginia occurred on that same day.

Much of the complexity of same-sex family law in Virginia comes from the fact that, prior to October 6, 2014, many same-sex couples had been living as married couples in the Commonwealth for years, if not decades.  Many family law questions, especially those that concern money, are decided by evaluating factors that include the length of a marriage.  Examples of this include the distribution of property and the award of spousal support upon divorce.

Same-sex marriages are treated the same as any heterosexual marriage under Virginia law.  However, the equal application of rules that limit the definition of property to property that was acquired during the marriage, does not treat couples equally if certain couples could not marry before October 6, 2014.

Marital Property

The classification of marital property under Virginia law is intended to facilitate the fair division of assets and debts that were acquired or accumulated during the relationship.  Unfortunately, it is easy to imagine situations where the letter of the law in Virginia would treat a same-sex couple unfairly.  

A hypothetical example illustrates the problem: a same-sex couple has been together for 30 years but only permitted to marry since the Bostic case in 2014.  The couple immediately wed once they were able, but they had been living together and treated as a married couple for at least 15 years prior to their legal union.  Perhaps they even had a private religious service cementing their union before Virginia allowed them to marry legally at the courthouse.

In 2013, one member of the couple established a retirement account and began to fund it.  It increased in value with the market.  However, since the couple only married in 2014, part of the account would have accumulated before the legal wedding and therefore, under the strict letter of the law, that portion should not be divided among the spouses; it belongs only to the spouse whose name was on the account.

Virginia courts have never ruled on this issue, so if you are in the situation of ending a marriage with a husband or wife of the same sex and you have been living as married prior to having the legal ability to marry, it is impossible to predict what a Virginia court would do.  Choose an experienced family attorney like those at Krum Gergely & Oates.

Spousal Support

In Virginia, for spousal support, or alimony, the law in Virginia Code 20-107.1 decrees that, if spousal support is ordered,  there is a rebuttable presumption that it shall continue for a period of time equal to 50% of the length of the marriage.  

Just as with the question of property division, the courts in Virginia have not considered the dilemma of how the length of a marriage should be calculated for a same-sex couple who had been living effectively as a married couple for some period of time preceding the legalization of same-sex marriage in the Commonwealth, for the purpose of spousal support.

Although the courts have not addressed the issue so far, if you are in a same-sex marriage or partnership that commenced before same-sex marriage was legal in Virginia, justice may demand that spousal support or alimony be calculated based on the reality that your partnership commenced before same-sex marriage was legal in the Commonwealth.  You should look for an attorney, like those at Krum Gergely & Oates, who understands the novel issues posed by the relatively recent legalization of same-sex marriage in Virginia: just because it took Virginia courts until 2016 to recognize same-sex marriage, doesn’t mean that your relationship was not the functional equivalent of a marriage before that, deserving of the dignity and recognition associated with marriage.

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