A Warning to Virginia's Same-Sex Parents

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

Introduction

In October of 2014, the United States Supreme Court lifted a stay on a Fourth Circuit ruling that made same-sex marriage legal in Virginia.  Suddenly, same-sex couples across Virginia found themselves with the right to marry, and took advantage of it quickly.

Shortly after this ruling, I wrote a blog post laying out some practical considerations for same-sex couples in Virginia in the "new world" of legal marriage.  I pointed out that while the new ruling meant that same-sex couples can get married, it did not retroactively make same-sex couples married, and as such there were many legalities a same-sex couple needed to go through to take full advantage of their new legal rights.  One issue I did not discuss, however, was children, and a new ruling from the Virginia Court of Appeals makes clear that I should have.

Just yesterday, the Court of Appeals issued its published opinion in the case of Hawkins v. Grese.  The case involved two women who had been in a relationship from 2004 to 2014.  In 2007, the women decided to have a child, and so Grese gave birth to a child conceived through artificial insemination.  Due to Virginia's marriage and adoption laws at the time, Hawkins was unable to adopt the child, nor was she named on the child's birth certificate.

In 2014, before the change in the marriage law went into effect, the couple broke up - but their break up was amicable, and they shared custody of their child.

However, in 2016, they came into conflict, and Grese began withholding the child from Hawkins.  After protracted custody and visitation litigation, the Court of Appeals found that Hawkins is not a parent of the child, and subsequently Grese has all the protections of a parent against Hawkins in the custody and visitation context (see my post on third-party custody and visitation for an explanation of what that means for Hawkins).  As a result, the Court of Appeals found that Hawkins had not overcome the "parental presumption" and awarded sole custody to Grese (note that the appeal did not address the question of visitation).  The Court of Appeals further included in its order this little nugget: "we hold that where custody disputes are concerned, the term 'parent' is a relationship to a child only through either biological procreation or legal adoption."

So What Does This Mean?

The main thing it means is that if you weren't married at the time you and your partner had a child, you are not a legal parent of that child unless you've adopted that child or are the child's biological parent.  For a same-sex couple, this means that if you had a child any time before 2014 and it was your partner's biological child, you must adopt that child in order to have legal parental rights.  This is true for an opposite-sex couple as well.

If you don't adopt the child, it doesn't matter that you were not allowed to get married at the time - you don't retroactively get treated as though you were married, so you must adopt in order to have those parental rights even if you are married now.

What About for Same-Sex Parents Who Were Married When the Child Was Conceived/Born?

I included a little nugget in my introduction that should scare even married same-sex parents (and, heck, married opposite-sex parents who used a sperm or egg donor to conceive) - the part about "parent" only if the child is biologically yours or legally adopted.  I think this statement was more broad than the Court of Appeals meant it to be and that this only applies to a couple that was not married at the time the child was born.  This is because Virginia has a statutory scheme creating what's called "presumed" parents - wherein if you are married at the time you give birth, your spouse is automatically considered the other parent unless proven otherwise, and put on the birth certificate.  This rule originally only applied to husbands, but has now been extended to same-sex couples by another US Supreme Court case.

Moreover, Virginia's statutory scheme about artificial insemination specifically states that "the husband of the gestational mother of a child is the child's father."  While the language is obviously gendered still, it is pretty clear, to me at least, from current case law that this rule would be extended to same-sex spouses (although I'd note for same-sex male couples that the Virginia law regarding surrogacy has its own complications for same-sex male couples).  As a result, I believe that if you are married at the time the child is conceived and born, you will still be considered the child's other parent, notwithstanding the implications of the Court of Appeals' loose wording.  However, this somewhat loose language of the Court of Appeals might make you want to consider adopting the child anyways.

What Should We Do About This?

Well, the answer is clear - if you have any question at all in your same-sex relationship of whether or not you will be considered your child's parent in the unfortunate event your relationship ends, you should adopt your child immediately.  If you are married, the process is pretty simple (you can see my post on step-parent adoptions here), but even if you aren't, it's not too complicated.  Obviously, having an attorney assisting you can help.

Conclusion

If you have a child with your same-sex spouse or partner, the Virginia Court of Appeals decision yesterday in Hawkins v. Grese should give you some pause to make sure the law considers you that child's parent.  If you aren't, or even if you're unsure, it's time to adopt that child to protect your parental rights.  If you need help figuring out if you are a child's legal parent, or need help adopting your child with your same-sex spouse or partner (or even your opposite-sex spouse or partner), feel free to review our initial consult policy (link above or here) and to call (703)281-0134 or shoot me an e-mail at SLeven@thebaldwinlawfirm.com to set up an initial consultation.  Our initial consultations are free for up to half an hour!

Annulments in Virginia - A Brief Primer

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

Introduction

As most middle school history students can tell you, once upon a time, divorce did not exist as a legal entity in the western world.  Instead, the only way you could end a marriage was by getting an annulment, an instrument declaring that your marriage was invalid to begin with.  As you can imagine, this was hard to do (in fact, the difficulty doing it was what led to Henry VIII splitting the Anglican Church off from the Catholic Church, directly impacting the past 400 or so years of history).

In the current age, the availability of not just divorce, but no fault divorce, makes the concept of an annulment somewhat quaint, but it does still exist under the law, and our firm does get at least a few inquiries each year about annulments.  In today's post, I will do a very brief primer on what Virginia law is regarding annulments.

Advantages of Annulment vs. Divorce

Now, your first thought might be, why bother with an annulment when a divorce is so much easier to get?  Well, annulments do offer several advantages.  Outside the legal context, annulments are sometimes necessary for you to remarry within your religious order.  Moreover, there can be psychological benefits if your marriage was toxic to having some confirmation that you should never have been married in the first place.  Within the legal realm, an annulment of a void marriage (as opposed to a voidable marriage, which I will get to in a moment) ensures that you will not be responsible for spousal support, and takes away the availability of equitable distribution of property, which depending on where you stand, can be advantageous.

Void vs. Voidable Marriages

Now, it's important to note that there are two types of annulments - annulments of void marriages and annulments of voidable marriages.  In the case of void marriages, these are marriages that were invalid the moment they were supposedly entered into.  In fact, under the law, they have no effect whatsoever, and you don't even need a Decree of Annulment to leave the marriage and remarry.  Nonetheless, a Decree of Annulment does clarify and finalize that you were, in fact, in a void marriage, that you can't later be hit up for spousal support, and that you can't be charged with bigamy if you re-marry.  A voidable marriage, however, is actually a marriage with a defect that makes it improper, but you can overcome it by either later ratifying your marriage, or simply disregarding the problem.  A voidable marriage is considered valid until a Decree of Annulment is entered, so while you can still say you've never been married before after an annulment of a voidable marriage, you cannot remarry until the annulment has been entered, and you can still be hit for spousal support and have to divide up property equitably since the marriage did create certain rights while it was valid.

So, what kinds of invalid marriages are void and what kinds are voidable?  The list is actually incomplete, as it comes from both statutory and case law, but here's a short list of some marriages that are void in Virginia:

• Bigamous marriages;
• Incestuous marriages;
• Marriages where either party is under 18 without consent of their parents;
• Marriages where either party is under 16 (with an exception for pregnancy).

As you can probably guess, prior to 2014, same sex marriages were also void, and prior to 1967, interracial marriages were also void in Virginia.

Some examples of invalid marriages that are merely voidable are:

• Marriage based on some form of fraud;
• Marriage involving at least one party that lacked capacity to consent;
• Marriage where one party was impotent at time of marriage;
• Marriage where one party had been convicted of a felony prior to the marriage without the knowledge of the other party;
• Marriage where the wife was pregnant with another man's child at the time of marriage without the spouse's knowledge;
• Marriage where another woman has the husband's baby within 10 months after the marriage and the spouse was unaware of the pregnancy at the time of marriage;
• Marriage where either party had ever been a prostitute without the other's knowledge;
• Per a very recent Virginia Court of Appeals case - marriage that was not properly licensed at the time it was entered (as opposed to a marriage not legally licensed at all, which would be void).

Fraud

So, the most common form of annulment we see is a claim of fraud.  Fraud occurs where your spouse made some kind of material misrepresentation to you prior to your marriage, that not just you subjectively, but a reasonable person objectively, would not have entered the marriage had you known the truth.  Some common examples are where the spouse claims to make substantially more money than he or she actually does, denies having any sexually transmitted diseases that he or she actually does, or claims that he or she does or does not want to have children when the opposite is true.

If you can prove that this fraud occurred, and that you would not have gotten married had the fraud not occurred, you actually do have a case for annulment (though remember, fraud makes a marriage voidable, not void, so the legal value of an annulment is limited).

Cohabitation and Two Year Marriage Rule

After all of that, however, we get to a big catch.  For most voidable marriages (not all, but most), even if you can prove your case, you still cannot get an annulment if either a) you "cohabited" with your spouse willingly after you learned of the facts that give rise to the annulment complaint, or b) you have been married at least two years.  Yes, this is even true of fraud - after two years, you can only get divorced, not get the marriage annulled, even if you don't discover the fraud until years later.

This rule is why our firm turns away most potential annulment clients - they usually have been married for two years, and no longer can seek an annulment.

Conclusion

Annulments are an ancient element of family law that is rarely available and even more rarely useful today.  Nonetheless, it is still a part of modern family law, and there are situations in which pursuing an annulment is worth your while.  If you are considering an annulment and would like to consult an attorney, feel free to call us at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com (although you may want to check out my new Initial Consultation Policy page before you do).  Our initial consultations are free for up to half an hour!

Legal FAQ Part V

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 apply only to the Commonwealth of Virginia.

Introduction

Once a staple of this blog, I discovered today that I haven't done a true Legal FAQ since February of last year!  As with my previous FAQ's, today I will answer questions that I am frequently asked by friends, family, clients and others, but which, in my opinion, don't really warrant a full blog post of their own.  As you will see, one topic from the news has been dominating my discussions with people who have these kinds of questions lately, so it will also be dominating this FAQ.  You can find my previous FAQ's here:

FAQ Part I
FAQ Part II
FAQ Part III
FAQ Part IV

Why was it constitutional to jail Kim Davis?

This is the question I've gotten from non-attorney friends the most recently - and not surprisingly.  In case you've been living under a rock, Kim Davis is the county clerk in Kentucky who refused to issue marriage licenses because if she did so, she would have to issue them to same-sex couples, and doing so violates her religious beliefs.  A federal judge said that her religious beliefs do not allow her to refuse to do her work duties and ordered her to resume issuing licenses.  When she refused, she was sent to jail for contempt of court.

Here's the thing - when someone works for the government, they act as an arm of the government while they are working.  If your religious beliefs prevent you from performing your duties as a government official, you simply cannot hold that title.  You have a right to believe whatever you want, to worship who you want and how you want, but you do not have a right to impose that belief on others, and when you are in a position of power in the government, that generally means you cannot use your own religious beliefs in a way that prevents you from providing services to the public.  As such, Ms. Davis had no right to withhold those licenses - she needed to either resign, or issue the licenses.  When she refused, she was correctly jailed for contempt.  It would be the same result for, say, a conservative Muslim DMV clerk who didn't want to issue driver's licenses to women, or an Orthodox Jewish SBA employee who didn't want to approve loans to businesses that would be open on Saturdays.

Now, unfortunately, a lot of misinformation out there has caused this case to be compared to a recent Supreme Court opinion in which Abercrombie and Fitch was found to have discriminated against a Muslim woman because they wouldn't hire her since she couldn't abide by their employee dress code.  This is a false comparison for a wide variety of reasons.  First, the issue in front of the Supreme Court was largely unrelated to the underlying issue - Abercrombie actually essentially admitted they discriminated, but claimed that because they'd only guessed she was Muslim (rather than her having actually told them that she was) then the relevant federal civil rights law didn't apply.  The Supreme Court (in my opinion correctly) said that argument was ridiculous.  Now, on the broader law, federal civil rights laws say that it is religious discrimination not only if a company refuses to hire someone solely because of their religion, but also if the company refuses to hire someone or fires someone because the practice of their religion conflicts with the policies of the employer, so long as it is possible to reasonably accommodate the employee's practices.

So, you not only can't refuse to hire someone because of their religion, you also must allow them to practice their religion so long as doing so would be reasonable.  So, what is a "reasonable accommodation"?  Generally speaking, this is something where it would not particularly burden the employer or hurt the company to accommodate the practice.  What is generally not seen as a "reasonable accommodation" however is changing one of the core functions of the job.  In the Abercrombie and Fitch case, most people agreed that adhering to the employee dress code was not a core function of the job, and that accommodating the woman by allowing her to wear a head scarf was not a substantial burden of any kind.  In other cases, however, it has been held to not be discrimination to, say, require people to work on certain religious holidays (so long as certain pre-conditions are met), to require Muslim waiters/waitresses to serve alcohol, and other actions where, again, one of the core functions of the job is involved.

Now, it's important to note first of all that these laws apply to private employers.  Government employers actually have more flexibility in how they treat their employees because there is special consideration given to the fact that the employees speak for the government.  Nonetheless, even if the government were treated the same way Ms. Davis would not fit into the discrimination category.  Why?  Kentucky law requires all court clerks to issue marriage licenses, and court clerks are the only people who issue marriage licenses in Kentucky.  To that end, accommodating Ms. Davis would be doubly unreasonable - issuing licenses is a core function of her job, and failing to issue them substantially burdens the citizenry since they'd have to leave the county to get a license elsewhere.

Ultimately, I'm reminded of the quote of a constitutional law professor in Maryland some years back:  "People place their hand on the Bible and swear to uphold the Constitution; they don't put their hand on the Constitution and swear to uphold the Bible."  The moment Ms. Davis became a government official, she surrendered the right to use her religion as a basis to defy the law.  Her proper course of action was to resign.  When she failed to do that, the court did what it needed to do.

Is the Dred Scott decision really still the "law of the land" but just ignored by politicians and courts?

I had hoped my missive about Kim Davis would be all I'd need to write on this topic, but yesterday a completely bone-headed comment by presidential candidate Mike Huckabee caught my attention and led to more questions.  In his quest to argue that the Supreme Court really doesn't have the "final say" in what is and isn't constitutional, Huckabee argued that the infamous Dred Scott decision of 1857, which declared African-Americans to be less than human, and subsequently incapable of being citizens of the United States, is still the "law of the land" but is simply disregarded by courts and politicians today.  I can confidently say, however, that Mr. Huckabee is dead wrong.

You see, out of all the things he gets wrong, Huckabee gets one thing right - the Supreme Court doesn't have the "final say" of what is and isn't constitutional.  Now, it does have the final say over what is and isn't constitutional at the moment that the court considers the case - and that has been the case since 1804 - but as anyone who passed middle school civics will tell you, that's not the end.  Congress and the states have the power to change the constitution by way of an amendment, and any Supreme Court opinion to the contrary prior to the passage of that amendment is then effectively overruled.  While Dred Scott was the law of the land in 1857, literally every single thing that it held was overturned by the 13th, 14th and 15th amendments, which were ratified in 1865, 1868 and 1870 respectively.  As a result, Dred Scott has absolutely not been the "law of the land" since at least 1870.

How does Kim Davis differ from a conscientious objector?

Sigh... Yep, not getting away from the Kim Davis questions, am I?  Ok, this is another one I've been asked about a lot because Ms. Davis's attorneys themselves brought it up.  They pointed out that we have a long history in this country of recognizing conscientious objection, and Ms. Davis should be treated the same.  For those who don't know, a conscientious objector is someone who belongs to a religion that believes war, in all circumstances, is morally wrong, and who subsequently will not join the military, even in a draft.  The most well known religious group holding this view is the Quakers.

Now, historically, the US has honored conscientious objection.  When we have had drafts, there is quite an extensive review to go through to make sure it's an honestly held belief - not just an effort to get out of the draft - but if proven, conscientious objectors have been exempt from drafts.  What's important to note, however, is that the courts held multiple times that the US is not required to honor conscientious objection.  There are many good reasons to do so, but the next time the US has a draft, the Congress could very well decide "eh, we'll just draft everyone" and that would be perfectly allowed.  However, there's a more important distinction here.  Conscientious objection allowed people to not be put into a position where they would have to violate their religious beliefs to do their job - Ms. Davis is already in that position.  A more direct comparison would be a Quaker who voluntarily joins the army, collects an army paycheck, obtains army benefits, and then refuses to be deployed - that simply would not be allowed.

So does anyone other than the courts get a say in what's constitutional?

So, in light of the above, you might be thinking that it's fairly clear cut that only the court's opinion of constitutionality matters.  This couldn't be further from the truth.  Beyond the power to amend, every single government employee has also taken an oath to uphold the constitution.  While the Supreme Court may have the final say on what is and isn't constitutional as the constitution is currently written, the other branches of government still have to make their own analysis and, within limits, can act accordingly even if they disagree with the Supreme Court.

First of all, when the Court rules a law unconstitutional, it is unenforceable, period.  But when the Court finds something constitutional, the law can still be repealed because members of Congress and the President disagree.  Members of Congress can vote against a law they believe unconstitutional, and a President can veto a law he or she believes unconstitutional - in fact, I would hope that they would in such a situation.  A President even has the power to refuse to enforce a law he or she believes unconstitutional, unless and until a court orders otherwise.  In other words, the Supreme Court may have the "final" say, but it does not have the "only" say.

Final Thought

Today is a rough day for many people in this country.  Fourteen years ago, the horrors of war and terror were brought to our shores.  Yet, we also saw this country's ability to stand together as one.  As political discourse gets worse and worse in this country, I simply pray that we all remember that we are all Americans - and that "same" is far more important than any of our "differents."

FAQ on Same-Sex Marriage

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

Introduction

Ever since the June 26th Supreme Court ruling in Obergefell v. Hodges made same-sex marriage legal nationwide, I've been inundated with questions from friends, family members, and former, current and potential future clients.  There are a lot of changes that this ruling brings, and a lot of people don't understand how this ruling affects them.  To that end, with this post, I hope to answer some of the most common questions I have been asked.

What impact will this ruling have on me, as a heterosexual, married person?

The ruling should have no impact on you at all.  The ruling did not change the status of any existing "traditional" marriages - it just added new people to the mix of who could get married.

Will this ruling eventually allow people to a) marry relatives, b) marry animals or inanimate objects, and/or c) marry multiple people at once?

Probably not, no, and maybe.  If the two relatives are both adults, consent to the marriage, and appear to be absent of any coercion, there could be an argument made that the logic applied to same-sex marriage here - that there is a basic right to the dignity of marriage for those who choose it - could allow for this marriage.  I would have two reasons why I would argue otherwise, however.  First, Obergefell was based on the notion that it was state-sanctioned discrimination against homosexuals that caused same-sex marriage to be outlawed - but what group of people is discriminated against when you bar marriage to relatives?  To date, attraction exclusively or primarily to relatives is not known or understood to be an inherent, immutable trait the way we now understand homosexuality to be, so the fact that bans against relative marriage are not discriminatory would likely uphold them.

Second, there could be a compelling state interest in forbidding relative marriage - children.  While states tried to say that same-sex couples' inability to have children was a compelling reason to disallow same-sex marriage this was ridiculous, because we allow many people who cannot have children to get married.  However, in relative marriage, you face the possibility of people who can have children but really shouldn't due to the extensively researched genetic problems that arise when relatives have children together.

To me, while I can see the argument, those two reasons combined would prevent courts from extending Obergefell to incestuous marriage.

As for marrying animals or inanimate objects - this argument has always struck me as absurd.  Marriage can only be awarded to two individuals who consent thereto.  Neither animals nor inanimate objects are capable of offering their affirmative consent to a marriage.  That alone makes Obergefell inapplicable to such marriages.

As for polygamy, this is the toughest.  The two exceptions that I raised which would prevent incestuous marriage to proceed don't apply here.  First, a large number of people belong (or claim to belong) to religious sects that authorize and even require plural marriage.  There is a discrimination argument to be had, then.  Moreover, there is nothing inherently wrong with people in your standard plural marriage having children.  I am inclined to believe that the courts will find that, since there are government financial benefits associated with being married, the government has a compelling interest in limiting the size of marriages so as to prevent the cost of those benefits from getting out of hand.  However, I am also inclined to believe that laws making plural marriage criminal (rather than just unrecognized by the state) are likely to be struck down in the not too distant future.

Will my church be forced to conduct same-sex marriages?

No, no it will not.  How do I know?  It's been fifty years since the Supreme Court said interracial marriages were required to be allowed, and there are still churches that refuse to marry interracial couples without consequence.  The arguments that pastors are going to be rounded up and churches forced to allow marriages to happen inside, are largely ignorant fear-mongering.  This is due to the combination of the free exercise and establishment clauses of the first amendment to the constitution largely forbidding the government from interfering in the internal religious conduct of churches.

Now, note that I'm just talking about churches here.  "Public accommodations" are businesses that offer goods or services in exchange for payment to the general public.  These do not include churches.  These frequently do include, however, wedding photographers, wedding bakers, wedding florists, etc.  Many states have laws banning public accommodations from discrimination on the basis of sexual orientation (along with race, religion, etc.).  In those states, a florist cannot refuse to serve a same-sex wedding any more than she can refuse to serve an interracial wedding or a Jewish wedding.  Public accommodation laws are well-known, and if one's religion will prevent them from following those laws, that person should not be entering the business.

I got married to my same-sex partner in Vermont in 2012 - how does this ruling affect me?

So, your marriage was recognized by the federal government in 2013 due to the Windsor case, so this ruling doesn't affect you particularly.  However, if you moved to Virginia prior to October, 2014, when Virginia began recognizing same-sex marriages, it means you may very well have some property issues here.  For example, if you purchased a home, you couldn't do it as "tenants by the entirety" - a favorable status of ownership that's allowed only to married couples.  It may be worth re-titling your home so you can take advantage of this status.

In short, my recommendation to all people who were legally married to a same-sex partner prior to October of 2014 but lived in Virginia is to consult an attorney regarding both all property you own and your estate planning documents, to make sure nothing needs to be updated.

I married my same-sex partner in a church in Virginia in 2012 - does this ruling mean my marriage must now be recognized by the state?

NO!  If you married in a religious or civil service a same-sex spouse in a state that did not allow such marriages prior to that state allowing them, neither this ruling nor any other court case allowing same-sex marriages retroactively legalized your marriage.  This is because most states have requirements beyond merely getting married in a church to become legally married, and Obergefell did not relieve you of meeting that requirement.

In Virginia, for example, to get married, you must a) get a marriage license, b) get married within 60 days after that license is issued, and c) return the license to the court where you got it within 5 days of getting married.  Before Obergefell (and in Virginia, before Bostic v. Rainey), you couldn't get a marriage license, meaning that your marriage did not comply with requirement a or c.  As a result, you must now go get legally married in order to have your marriage recognized.

Conclusion

While Obergefell finally brought some clarity to issues of same-sex marriage, we still must deal with the realities of more than a decade of such marriages being allowed in some states and not others, as well as in some churches and not others.  This will likely create issues for a few decades to come.  If you have any question regarding the effect of this ruling on your own situation, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!

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!

BREAKING NEWS: Same-Sex Marriage Legal in Virginia

Hi all - this is not a regular blog post.  As many of you may know, the US Supreme Court today denied cert. (i.e. refused to hear) in a number of same-sex marriage cases, including one involving Virginia.  This means the Fourth Circuit's ruling mandating same-sex marriage in Virginia is in force, and same-sex marriage is now legal in Virginia.

This is only step one for same-sex Virginia couples, however.  Step two is the actual issuance of marriage licenses.  Most counties, including Fairfax, are awaiting the issuance of the "mandate" from the Fourth Circuit which officially effectuates the Fourth Circuit's ruling.  That is expected to come at some point today.  Many counties had prepared same-sex marriage licenses prior to the Supreme Court's stay of the Fourth Circuit ruling on August 20th, and as a result, those counties have the licenses ready to go.  This means I expect the first same-sex marriage licenses in Virginia will be issued later today.  Attorney General Mark Herring has stated that he has the same expectation.

Those of you in Fairfax County can follow Fairfax County's license issuance status on twitter using the handle @ffxcircuitcourt.

I will likely have a blog post about some of the legal implications of this ruling later this week.

Paying for Your Divorce the Rest of Your Life - Spousal Support and the Law

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

Update:  Some of the information in the below blog post is now outdated due to changes in the law.  Please see my 2018 and 2020 Relevant Changes in the Law post for details.

Introduction

When I have an initial consultation with someone about a divorce, if they make more money than their spouse, the first question I usually get is "how much alimony am I going to have to pay?"  I'll get the reverse question if my consult is with the spouse who makes less.  Unfortunately, the answer I always have to give, as is so often the case, is "it depends."  However, the "it depends" is even worse when it comes to spousal support (which is what we now call "alimony" since the roots of the word "alimony" imply that it is only paid by a man to a woman, while legally it can go either way now).

Perhaps the biggest complication with spousal support is that there are generally no "guidelines" for determining the amount.  Unlike child support, you can't just put the parties' incomes and a few other factors into a formula and churn out an answer (although there are some minor exceptions to this that I will cover).  This means spousal support is largely left to the discretion of the judge - and different judges will vary their opinions widely.  Fortunately, there is a little bit of law to help us out, but it's still very hard to come away from the law with an understanding of what any given case will result with.

Four Different Spousal Support Situations

To start off, it's worth noting that there are four unique situations in which spousal support can be awarded, and the law between them varies anywhere from minimally to widely.  Spousal support can be awarded as part of a divorce in a Circuit Court case, as a result of a Decree of Separate Maintenance in a Circuit Court case, as a result of a Petition for Spousal Support in the Juvenile & Domestic Relations District Court, or as a result of a contract (either pre-marital or marital - see my post on pre-marital agreements for the distinction).

To add even more complications to this issue, in case one party really needs support right now, while the above cases are pending that party can file a Motion for Pendente Lite Relief.  This means they are asking the court to award them temporary spousal support while the litigation is pending - and the law for setting spousal support then is different too!

Contractual Spousal Support

Contractual spousal support is probably the easiest of these topics to cover.  If, in a pre-marital agreement, marital agreement, property settlement agreement, or any other contract with your spouse you reached an agreement regarding spousal support, the court will enforce that agreement.  Note, however, the court will enforce it precisely.  If you include language in your contract allowing the court to modify support in the future, then it can, otherwise the support amount, and the duration of the award, is fixed and unchangeable.

This is very important to understand.  I cannot count the number of times I have seen Property Settlement Agreements where someone casually decided 20 years ago to pay a certain amount of spousal support for life, not realizing this meant that they were agreeing to continue to pay it after they were old and unable to work anymore.  I've seen people unable to enjoy a retirement because they promised lifetime payments without allowing for a modification.  Unless there is something glaring that warrants it, as a general rule I will never recommend to a client to agree to lifetime spousal support without including a clause allowing modification - and you should think twice before you sign an agreement that does this.

Spousal Support Pendente Lite

Now, if you don't have a contract or agreement, spousal support will be decided by the court, and like any litigation, any of the options take a substantial amount of time.  As a result, Virginia Code Section 20-103 allows you to file a Motion to temporarily set spousal support while a Divorce or Separate Maintenance action is pending, and Virginia Code Section 16.1-278.17 allows the same in a Petition for Spousal Support case in the J&DR Court.  Since the support awarded pendente lite is inherently temporary and will have allowed less evidence collection prior to hearing, the law for setting pendente lite support is a little simpler.

In the J&DR Court, Virginia Code Section 16.1-278.17:1 lays out a specific formula.  Under that formula, basically, when there are no children, spousal support will be equal to 30% of the payor's monthly gross income minus 50% of the payee's monthly gross income.  When there are children between the parties, then the support is 28% of the payor's monthly gross income minus 58% of the payee's monthly gross income.

The law laid out for pendente lite cases in the Circuit Court is not as clear cut.  Virginia Code Section 20-103(A)(i) just calls for the payor to pay "any sums necessary for the maintenance and support of the petitioning spouse."  As a result of this lack of clarity, several Circuit Courts have adopted their own "guidelines" that are applicable only to pendente lite hearings.  Fairfax County, for example, uses the same formula as the J&DR Court (actually, Fairfax County's guidelines came first, and the legislature liked them so much that they then codified those guidelines for all J&DR courts statewide).  Harrisonburg, however, has a very complicated formula that varies depending on whether each spouse is working or not, who is receiving child support, etc.  Richmond uses the J&DR formula when there are children, and uses 30% minus 30% (instead of 30% minus 50%) when there are not.  Courts that don't have their own guidelines often use another court's guidelines, or just come up with their own numbers that the judge thinks sounds reasonable.

J&DR Court Spousal Support

Ironically, despite the J&DR Court having possibly the clearest pendente lite spousal support law, it has probably the least clear final spousal support award law.  Virginia Code Section 16.1-278.15(F) requires only that the court "enter any appropriate order to protect the welfare of the spouse seeking support."  That's it, no further guidance from the law.  Obviously, judges tend to vary very widely in figuring out what the "welfare of the spouse seeking support" is, although in my experience, judges in J&DR Court cases frequently end up just applying the pendente lite guidelines (maybe with some adjustments) and go with that number.

Circuit Court Support

In a suit for Separate Maintenance or for Divorce, the Circuit Court when determining its final spousal support award must consider a series of "factors" laid out in Virginia Code Section 20-107.1(E).  These factors are, essentially:

- The income and expenses of each party
- The parties' standard of living during the marriage
- The duration of the marriage (from date of marriage to date of separation)
- The age and health of the parties, along with any special needs in the family
- Whether or not there are children too young for both parties to work
- The contributions, both monetary and non-monetary, during the marriage of each party to the well-being of the family
- Each party's property interests, including real property and personal property
- What is being done with the parties' marital property
- Each party's earning capacity or ability to increase their earning capacity
- Decisions made regarding each party's employment during the marriage
- The extent to which each party has helped the other increase their earning capacity during the marriage
- Any other factors the court wants to consider

In my experience, the income and expenses of the parties, the duration of the marriage and the earning capacity of the parties tend to be the most important factors, although all are considered, and I've certainly seen cases where the final result hinged on other factors.

After all of that is done, the question then really comes down to a) how much money does the payee really need to support him or herself (or, how much would he or she need if he or she had made an honest effort to find employment), b) can the payor actually afford that amount, and c) is it fair to order the payor to pay that amount.

As you can see, with all these issues coming into play, predicting a spousal support award at the initial consultation phase is practically impossible.

Duration of Spousal Support Award

The next question I get asked, however, is for how long spousal support is going to be paid.  The answer, again, is "it depends."  For contractual spousal support, the support will last as long as the contract says, or if there's a modification clause, then until the court terminates it.  For pendente lite support, the amount will last until the case is over.  For J&DR support orders, the support will last until the parties are divorced and a new support order is entered, or until it is modified by the court.  For Separate Maintenance and Divorce, it depends.

Until a few decades ago, spousal support was always permanent.  It was in place until a terminating event occurred, or the court modified it to $0.  Nowadays, permanent support is fairly rare.  Instead, the court considers the same factors discussed above when deciding the duration of support.  The question essentially again comes down to a) how long will the payee need this support before he or she can support him or herself (or should be able to support him or herself if he or she makes a reasonable effort to find employment), b) can the payor really afford to pay for that long, and c) is it fair to order the payor to pay for that long.

A rule of thumb many attorneys use is that spousal support will be ordered to last half the duration of the marriage (so 3 years for a 6 year marriage, for example).  This is just a rule of thumb, however, and should not be relied on outside the negotiating arena.  I've seen permanent support ordered for very short marriages, and only a year of support for longer marriages.  It really depends on the judge and the circumstances of your case.

Terminating Events

Now, you've heard me mention a few times "terminating events."  These are events that terminate spousal support, almost no matter what, even if the spousal support is supposed to be permanent, or for a longer defined duration.  These events, which are laid out in Virginia Code Section 20-109(A) & (D) are:  a) the death of either party, b) the remarriage of the party receiving support, or c) the party receiving support having cohabited with another person in a relationship analogous to a marriage for a period exceeding 12 months.  If any of these occur, spousal support terminates immediately, and if it is remarriage and the payee continues collecting after the remarriage, the payor can sue the payee to get that money back plus interest.

The only way for these to not terminate support is in the case of contractual support, the paying party can waive their right to use this provision.  Interestingly, while contracts are generally deemed to be unmodifiable by a court unless there is an express provision stating otherwise, courts have determined that the opposite is true for spousal support termination provisions.  In other words, the termination provisions are deemed to automatically apply to all contractual spousal support unless they are expressly waived.  This means that a contract that says "spousal support only terminates upon the death of either party" will still be deemed to terminate spousal support upon remarriage of the payee!  Instead, the agreement would have to state, specifically "spousal support will not terminate upon the remarriage of the payee."  Same for the other conditions.

Finally, "cohabitation in a relationship analogous to a marriage" is a complicated issue that warrants its own blog post some day, but it's worth noting that a "relationship analogous to a marriage" does not mean that a sexual relationship is either necessary or sufficient.  If the only part analogous to a marriage is sex, then a court is unlikely to find that the relationship qualifies.  If, however, the relationship is completely like a marriage except there is no romance and no sex, the court may still find it to be a relationship analogous to a marriage.  Just recently the Court of Appeals ruled that a woman who lived with a platonic female friend but shared chores with her, prepared each other's meals, etc. was in a "relationship analogous to a marriage" with her friend, even though they would be legally barred from getting married in Virginia!

Why Separate Maintenance

Now, you've also seen me talk several times about "separate maintenance."  You might be wondering why someone would file a Separate Maintenance case instead of for divorce.  Well, let's say a couple has an amicable split - no fault grounds for a divorce exist, but they cannot agree on a division of property or support.  The parties have to wait for a year of separation before they can even file for support.  Separate Maintenance allows one spouse to get support from the other while the parties are still married.  This is essentially an avenue for the spouse who needs support to get into the court when a divorce is not yet available.

There are cases, however, where a divorce may still be available but Separate Maintenance may be more desirable.  For example, many health insurance plans do not allow someone to cover an ex-spouse.  A Separate Maintenance Order keeps the parties married, but allows for support of the party needing support, and can require the payor party to keep the other party on his or her health insurance as well.

Conclusion

Spousal support law in Virginia is extremely complicated.  There is no clearly set way to determine how much someone should expect to pay or receive in any given case, and the law changes depending on the type of spousal support being sought.  Understanding the factors involved in determining spousal support, however, can begin to allow you to reach some level of planning.  If you anticipate needing or potentially paying spousal support, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consult with our office.  Your initial consultation is free for up to half an hour!

Same-Sex Marriage, a Conservative Commonwealth, and a DOMA-less World - What Today's Ruling Means for You

As always, before reading my post, please review my disclaimer by following the link above or by clicking on this link.  As always, legal policies discussed here pertain only to the Commonwealth of Virginia.

Introduction

Unless you've been living under a rock today, you know that the Supreme Court issued its rulings in United States v. Windsor and Hollingsworth v. Perry.  The former found the federal Defense of Marriage Act ("DOMA") unconstitutional, and the latter found that the petitioners lacked standing to fight to support Proposition 8, preventing the Court from reaching the merits of that case.  Most people seem to recognize that the Prop 8 ruling basically has no meaning outside of California, but what about the DOMA ruling?  If you are a homosexual living in Virginia, what does the ruling in Windsor mean to you?

No Nationwide Same-Sex Marriage... Yet

The first thing to realize is that Windsor did not, in any way, find that there is a constitutional right to same-sex marriage.  That issue was not even technically before the Supreme Court in this case (it theoretically could have been in Perry, but as discussed above, no "merits" decision was issued in that case).  As a result, if you are in a same-sex relationship living in Virginia, don't rush off to your local courthouse to get married - Virginia's ban on same-sex marriage remains on the books.  While the Supreme Court might some day rule that there is a constitutional right to same-sex marriage - and some have suggested that the language of Windsor implies there are five votes to go that way if the issue is squarely presented to the court - it did not do that today.

The Feds Must Recognize Your Legal Same-Sex Marriage

Now, let's say you go off to Vermont, where same-sex marriage is legal, and marry your same-sex partner, even though you are both residents of Virginia.  Well, unless Vermont has a law that I'm unaware of about residency requirements, you will then be legally married under Vermont law, regardless of Virginia law.  Today's ruling in Windsor means the federal government must recognize that marriage.  This means you can now file joint tax returns, get the benefit of the marriage exclusion from estate taxes (the actual issue that brought Windsor to the Supreme Court), sponsor your non-American same-sex spouse for immigration, and you can get access to the myriad other rights that the federal government confers on married couples.  However, in all of this, I want to emphasize the word "federal."

(UPDATE:  Please read the comments to this blog post for a brief discussion of this issue.  While I stand by my belief expressed above, the fact is even this "victory" for same-sex couples is not guaranteed and is debatable, and we will not be certain of this until the new regulations are released.)

Virginia Is Not Required to Recognize Your Legal Same-Sex Marriage

Even though the Federal government must now recognize same-sex marriages that are legally performed in states that allow them, states do not necessarily have to follow suit.  This is because DOMA actually had multiple sections.  The issue before the Court in Windsor was Section 3.  That's the Section of DOMA that forbade the federal government from recognizing same-sex marriages, even if they were legal and legally performed in the state where entered into.  Section 2 of DOMA, which was not before the Supreme Court and was not struck down today, allows states to disregard same-sex marriages legally entered into in other states if those states so choose.  Virginia has so chosen, and Section 2 remains on the books.

Of course, Section 2 will be thrown out if same-sex marriage is found to be a constitutional right.  Similarly Section 2 could be in danger due to the Full Faith and Credit Clause of the Constitution, but again, it is currently the law of the land.  As a result, using the example from above, just because you can file a joint federal tax return doesn't mean you can file a joint state one, or get any of the myriad benefits Virginia confers on married couples.

Divorce

Because Family Law is one of my primary practice areas, I, of course, cannot stay away from the topic of divorce.  Let's use our above example again.  You go to Vermont, you get married to your same-sex partner, you return to Virginia, you stop working since your same-sex partner makes more than enough to pay for you both, you buy a house together, you adopt a child who you stay home to raise, you do all the normal things married couples do, then suddenly you find out your spouse is cheating on you.  You confront your spouse and your spouse kicks you and your child out of the house since the house is in only your spouse's name.  You come back to the house, your spouse calls the police, you read my first post on my blog about how your spouse can't just kick you out of the house, so you tell the police you're married, the police officer laughs in your face because Virginia doesn't recognize your marriage and forcibly removes you, and you're stuck living in a hotel.  You want to file for divorce, you want spousal support, you want custody, you want child support, and you want your share of the house - all of which you would definitely have a strong case for if you were in a heterosexual marriage.  What can you do?

One option would be to return to Vermont to file for divorce there, but residency requirements, personal jurisdiction problems and other problems may very well make that impossible.  Suddenly, you find yourself without luck.  Can you file for divorce in Virginia, when Virginia does not recognize you as married to begin with?

There are two approaches you can take.  First, you can file for an annulment.  In Virginia, when a marriage is "void" (as in, was never legal in the first place), you can still file for an annulment to allow for a "clarification" of your marital status, and to decide some property rights.  The odds are, however, your recovery in an annulment case would be limited, you almost definitely cannot get spousal support, and, possibly most frustrating of all, you would have to acknowledge that your marriage was not valid to begin with.

The second approach would be to file for divorce anyways.  The court cannot ban you from filing a case to begin with, it can only dismiss the case after it's filed.  This means, you could file for divorce, and then argue that Virginia's same-sex marriage ban is unconstitutional, there's a constitutional right to same-sex marriage, DOMA's Section 2 is unconstitutional, or some combination thereof.  Just be ready that if you do this, you will have to face the full might of the Commonwealth of Virginia in court, and you're talking about a protracted battle - easily four or five years if the case ends up in the United States Supreme Court.  However, every major Supreme Court ruling has a real person at the heart of it (Edith Windsor today, and in the past Richard and Mildred Loving, Oliver Brown, Fred Korematsu, Homer Plessy, William Marbury and so on), and it's not inconceivable you could find yourself on that list.

Conclusion

If you are in a same-sex relationship in Virginia, you have a lot to celebrate today, but you also still have a long way to go before your relationship is recognized in Virginia.  If you marry in another state, the federal government must now recognize your marriage, but Virginia does not have the same obligation.  If you are in a same-sex marriage and want to discuss what rights you now have and how to protect your rights in the future, or if you are contemplating a divorce, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation.  It's free for up to half an hour!  Please be aware, however, if you do retain me or my firm for representation in a divorce or other court action based on your same-sex marriage, the expense might be higher than usual due to the protracted nature of a constitutional challenge.