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Virginia Same-Sex Marriage (and Divorce)

In February, a Virginia federal court struck down Virginia’s ban on same-sex marriage as unconstitutional under both Due Process and Equal Protection clauses of the 14th Amendment. Last month, the 4th Circuit US Court of Appeals upheld the federal court’s decision; and today, the 4th Circuit declined to grant a stay of its decision. This means that unless the US Supreme Court steps in to grant a stay (which it may do next week), marriage licenses will be issued to same-sex Virginian couples looking to wed as early as next Thursday, August 21, 2014. If you are thinking of taking advantage of this opportunity, here are some things for you to think about:

Prenuptial Agreements. Prenuptial Agreements can be a great way to determine property rights and division including how property is characterized (separate, marital, or hybrid), it can make provisions for spousal support, and generally provides financial security and protection for both parties. Prenuptial agreements are typically used to provide the wealthier party with financial protection, and the less wealthy party with financial security – especially if either party has an asset that may significantly grow during the period of the marriage, or will be giving up future streams of income (such as giving up a career to stay home and raise children). However, there are many other reasons a prenuptial agreement may be especially enticing to couples who have had extended relations before getting married. For example, if the couple has bought a house together before getting married. If there is no prenuptial agreement, during any possible divorce, the court will have to determine each party’s separate interest in the house from the date of the purchase to the date of the marriage (which will likely be unequal), in addition to the marital value of the house, and then decide how to divide the marital value. This analysis can take a lot of time and money, including the hiring of experts to trace each party’s pre-marital contributions to the residence. By contrast, if a prenuptial agreement specifies the residence is entirely marital property, then the court would only need to determine how to divide the property in any future divorce. Though in this example one party is likely waiving their right to receive a more-than-50% share of the house, it may be something you are interested in if you are looking for ways to have the court divide property as though you were married on an earlier date.

Postnuptial Agreements. Postnuptial Agreements work the same way as prenuptial agreements – except that they are executed after the date of marriage, instead of before. In addition to the reasons listed above that couples may enter into a prenuptial agreement, couples sometimes decide to enter into postnuptial agreements to ward against future bad behavior – for example, a cheating spouse. If you have caught a spouse cheating, but decided to reconcile, a possible postnuptial agreement would provide an unequal distribution of the marital property in case of a divorce due to a future indiscretion, and an equal distribution of the marital property if there was a separation or divorce for any other reason. This type of postnuptial agreement is meant to be a carrot and stick method for inducing good behavior.

Adoption. Currently, Virginia only allows single persons and married couples to adopt, effectively banning same-sex adoption. However, once same-sex couples are allowed to marry, they will be able to do step-parent adoptions (in cases where the other spouse is a biological or adoptive parent), and will be able to do agency and private adoptions as a married couple. Step-parent adoptions where the spouse is the only parent (birth or adoptive) of the child, or the other parent has not been in the picture for a period of time, are typically pretty straight forward and are allowed to skip many of the procedural hurdles to adoption that couples face including the home study. If you are a couple thinking of adopting after marriage, the process will take a number of months or longer. You will need to complete a home study, find a child to adopt (usually through an agency or networking), and then begin the court process of adopting the child. I highly recommend you see an attorney sooner, rather than later, if you are planning on getting married soon and then adopting together.

Divorce. Virginia will not currently divorce same-sex couples married legally in other states, because it does not recognize same-sex marriages as valid. Once same-sex marriage is legal in Virginia, all of those marriages will become valid in Virginia under the Full Faith and Credit clause of the U.S. Constitution, and Virginia courts will be able to provide divorces to same-sex couples who wed in other states. This means Virginia will be able to determine equitable distribution (property rights), spousal support, child custody and visitation, and child support. As long as Virginia would have jurisdiction to divorce you if you were an opposite-sex married couple (valid marriage, residency in Virginia for 6+ months, requisite separation period, etc.), it will have jurisdiction to divorce you if you are a same-sex married couple once same-sex marriage is recognized.

The Roop Law Firm has experience representing individuals in same-sex relationships in connection with the dissolution of that relationship including, but not limited to, property division, and managing of post-separation finances (ensuring each party has adequate income to meet their expenses).


Roop Law is an Attorney at Roop Law. You can follow him on Facebook and connect via LinkedIn

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