Same-Sex Marriage in Virginia: Untangling the Legal Complexities

As always, before reading this post please review my disclaimer by following the link above or by clicking on this link.  As always, any legal principles discussed shall apply only to the Commonwealth of Virginia.

Introduction

As discussed on Monday, same-sex marriage is now legal in Virginia.  While this is obviously a very exciting time for many same-sex couples in Virginia, the reality is the old laws are still on the books (just no longer enforceable), and in general your same-sex relationship will still be in the legal limbo it was in before Monday unless you take concrete steps to change it.  Today I will address some of the important steps same-sex couples in Virginia need to take in order to take advantage of the change in law.  Please note that some of these steps need to be followed even by couples that were already legally married in other states but resided in Virginia.

First of all, you need to get married

While Virginia law covering who can and can't get married has changed, Virginia law regarding how you get married hasn't.  This means that if you had a religious marriage ceremony (or a civil one) in Virginia previously, you aren't suddenly legally married.  In order for a marriage conducted in Virginia to be legally valid, you must follow a three step process, and it must be followed in this order:

1. You must obtain a marriage license from any Circuit Court in Virginia.
2. You must be married by a person (minister, rabbi, civil officiant, etc.) certified to perform marriages in Virginia within 60 days after the license is issued.
3. The person performing your marriage must return the now-completed marriage license to the court where it was issued within 5 days after performing the marriage.

So, because you could not previously get a license, your prior Virginia marriage is not valid because steps 1 and 3 were not followed.  Since the above must be done in order, you must again go through step 2 in order for your Virginia marriage to be legal.

Of course, this provision only applies to same-sex couples who previously got married in Virginia.  If you were legally married in another state, then you don't need to get married again - your marriage will now be recognized in Virginia.

Re-title your property

There are many advantages that states give to married couples that will become available to you automatically with the change in law (if you were already legally married elsewhere) - and of course federal advantages were given to you with the Supreme Court's decision in Windsor back in June.  However, some of these advantages are not automatically given, meaning you need to take action.  One of them is how your home is titled.

In general, there are three ways property can be titled - tenancy in common, joint tenancy and tenancy by the entirety.  A tenancy in common creates the idea that you each own half the property, you can each fully dispose of your half as you wish, but a creditor can also attach to your half and force the sale of the property.  A joint tenancy means you each jointly own the whole property, but this can be broken up at any time by either of you, and creditors are sometimes able to get in and take a lien on the property.  A tenancy by the entirety means you each own the whole property as a single entity, thus neither of you can break up the tenancy by the entirety without the agreement of the other, and only a creditor who is a joint creditor (as in, you both owe that creditor money) can come in and place a lien on your property.

A tenancy by the entirety is legally only available to a married couple.  As such, if you bought property jointly before the change in law, even if you were legally married in another state, Virginia law did not recognize your marriage and you were, at best, made joint tenants.  You should see a property lawyer ASAP to get your property re-titled as a tenancy by the entirety to take advantage of its availability.

Re-title your bank account

The above goes double for a joint bank account.  Even a joint bank account that is owed as a "joint tenancy" can have up to half of it garnished by a creditor of just one owner (with some very rare exceptions).  If a bank account is owned as a tenancy by the entirety, however, a creditor of just one owner cannot touch the account in a garnishment.  You should go to your bank and ask to have your account re-titled as a tenancy by the entirety - be aware they may require you to close your current account and open a new one.

Review your estate plan

The change in law will have an impact on a wide array of issues in estate planning - too numerous for me to list.  This would be a very good time to go to your estate planning attorney and review your wills, medical directives, etc. to make sure they do what you want them to.  Same with your beneficiary designations on life insurance policies, retirement plans, etc.

Review your insurance policies

Many health, homeowners and auto insurance policies provide benefits for families, but require you to be married to take advantage.  Again, these won't be changed automatically just because the law has changed - you need to update your marital status with the companies and potentially apply for new policies.

Consider a marital agreement

Perhaps one of the most confusing aspects of same-sex marriage will be what happens if you get divorced.  Usually, most property acquired during a marriage is considered "marital property" at the time of divorce - but how do you define "during a marriage" in this case?  If you were only married in Virginia, then you were clearly not legally married previously, so the clock will only start ticking once you get legally married - but what if you were legally married in another state, then lived in Virginia where your marriage wasn't recognized?  We can have guesses as to what the courts will say, but the best plan to prevent problems if a divorce becomes necessary is a marital agreement.

Marital agreements are just like pre-marital agreements, except they happen after you are already married.  I get into more detail about these agreements in a blog post from last August, but the key is you can resolve property issues by a marital agreement pretty much however you want.  If you want all property from the time your non-legally recognized marriage was performed in Virginia to be recognized as marital, your marital agreement can do that.

Look, no one wants to think their marriage might end, but somewhere around 35% of marriages do, and you really should prepare yourself.  If you don't, you could be in for a much more expensive divorce than usual because of the extra legal complications.

Get extra copies of your completed marriage license

As I said before, the old laws will remain on the books until actually removed by the General Assembly - they are not automatically removed just because they are unenforceable.  Combine this with the fact that most government employees were trained under the old law, and you are bound to run into at least some trouble somewhere along the way in updating your records, property, etc.  Having copies of your marriage license on hand to prove that you are, in fact, married would be one of the easiest ways to get past this problem.  You can get copies of your Virginia marriage license from the court in which it was issued or from the Virginia Office of Vital Records in Richmond.

Conclusion

The sudden change in Virginia law for same-sex marriages could create a number of legal issues for same-sex couples here.  If you would like to talk to an attorney about what you should do to protect yourself and take advantage of the new law, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation.  Our initial consultations are free for up to half an hour!