Same Sex Divorces in Virginia
October 6, 2014, was the date that same-sex marriages became legal in Virginia, which also meant that same-sex divorces also became legal on that date. Since then, the courts have been forced to navigate through nuances in the law that presented some additional challenges for same-sex couples who were seeking a divorce.
Basic Requirements for Divorce in Virginia
No matter whether it’s a heterosexual or same-sex marriage, the basic requirements for divorce in Virginia are the same. You must be a resident of the state for at least six months prior to a divorce filing. Virginia is not a no-fault state, which means there needs to be grounds for filing. Some common reasons include adultery, cruelty or abuse, or a felony conviction with over a year of imprisonment during the marriage after which the spouses have not resumed living together again.
Also, parties can get divorced after six months with a written separation agreement. However, if they have children (adopted or natural) spouses must stay separated for a year prior to filing for divorce.
Custody for Same Sex Parents in a Divorce
When children are involved, it’s usually a given that same-sex parents are raising a child that is the non-biological child of one or both of the spouses. In heterosexual divorces, there is an assumption of parenthood, something that doesn’t necessarily apply to parents in same-sex relationships. Since Virginia only allows someone to adopt if they are single or married, there are a number of couples who were in committed relationships prior to the legalization of same-sex marriage.
If the non-biological spouse hasn’t filed for a formal adoption, there may be issues during the divorce process. If the divorce is amicable, it’s best to file for joint legal and physical custody. However, there is still no guarantee as to the outcome, as the courts ultimately decide what is in the best interest of the child.
Non-biological parents need to check their insurance plans after the divorce – many health plans won’t cover “ex-stepchildren,” which can present additional issues if the health insurance benefits are through one spouse only.
Thankfully, the courts are already catching up with same-sex divorce frustrations on the alimony front. State law allows for alimony payments to be cut off if the recipient enters into another marriage or has been “habitually cohabitating” with another individual in a relationship that is akin to marriage for at least a year or longer. In the 2014 case, Luttrell v. Cucco, one man sought to end his alimony payments to his ex-wife, citing the law that she was engaged and living with her new partner for longer than a year. The ex-wife argued the law didn’t apply to her because her new partner was also a woman. The local court and the Court of Appeals both ruled in the ex-wife’s favor, but the Supreme Court reversed the lower court decisions.
Retaining a Same Sex Divorce Attorney in Virginia
If you’re facing a same-sex divorce, it’s important to retain a Leesburg divorce attorney who is skilled in the most updated laws. If you’re concerned about your rights, property separation, or child custody issues, contact the office of Whitbeck Cisneros McElroy at 703.997.4982 to schedule a consultation with one of our Virginia family law attorneys.