On October 6, 2014, Virginia became the 20th state in the U.S. to recognize same-sex marriages, after the Supreme Court of the United States denied review of three Virginia cases sent up from the Fourth Circuit Court of Appeals. In fact, the Supreme Court denied review of seven different cases from five different states in the Fourth, Seventh, and Tenth Circuits, each of which had found that state bans on same-sex marriage were unconstitutional. In denying review of all these cases, the Supreme Court effectively allowed those rulings to stand, meaning that Virginia, Oklahoma, Utah, Indiana, and Wisconsin all became bound by their respective Circuit Court rulings, and other states covered by those Circuits became similarly bound under stare decisis. By court order, each of these states began to recognize same-sex marriages performed elsewhere, as well as issue marriage licenses to same-sex couples within their own states.In Virginia, this victory for marriage equality only came as a result of the Fourth Circuit’s July 28, 2014 ruling, which found that Virginia’s ban on same-sex marriage violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the U.S. Constitution. Upon this ruling going into effect on October 6, 2014, Governor Terry McAuliffe issued an Executive Order to all state agencies requiring them to fully comply with the legalization of same-sex marriage and implementing a number of important marriage-related benefits.
What does this mean for Virginia residents? As of October 6, 2014, same-sex marriages may be performed and recognized in the Commonwealth and thus afforded all the rights and responsibilities of marriage. If you were previously legally married in a jurisdiction that allowed same-sex marriage, your marriage will automatically be recognized in Virginia, as well as for all purposes under federal law. If you are not married, you may now obtain a Virginia marriage license and get legally married in the state. Additionally, married couples may now file joint state tax returns (as well as federal), and may obtain a stepparent adoption in Virginia, meaning that you may legally adopt your spouse’s child without terminating their parental rights. You may re-deed any Virginia property between you and your spouse so that it is owned as tenants by the entireties, or get divorced in the Commonwealth, which includes an equitable distribution of assets, child custody, and support determinations. For those with children, if you were married at the time the children were born, you should be able to amend their birth certificates to include both spouses as their legal parents. These and many other areas may be affected as well, depending on each individual’s situation. For state employees, for example, same-sex spouses will be eligible for state health benefits within 60 days of the date of marriage.
However, same-sex couples in Virginia should be cognizant of the fact that not all 50 states recognize same-sex marriage, and thus many of the new legal relationships recognized by the Commonwealth may require additional steps to ensure that these relationships are respected and protected while traveling outside Virginia. Both married and unmarried couples should consult a family law attorney to discuss getting a second parent or stepparent adoption to ensure that both spouses’ parental rights are secure. And, couples should discuss possible premarital agreements, property agreements, and/or custody agreements, to protect themselves in the event that a non-recognition state’s laws ever become a factor. Every situation is different and additional documents or securities may be required. You should seek the advice of a lawyer experienced in these issues to see what you should do now that marriage equality has come to Virginia.
Same-sex marriage recognition in Virginia has been a long time coming, and the rights and responsibilities of marriage will ultimately help to protect and strengthen numerous families all over the state. As state agencies and employees adjust, Virginia residents should see more and more assurances of these protections over the coming weeks and months.
Michele Zavos is a partner in the Zavos Juncker Law Group, PLLC, which practices family law in the District of Columbia, Maryland, and Virginia. Cody M. Perkins is an associate and legal fellow with the firm.
