The Supreme Court of the United States issued a landmark decision on June 26, 2015 when Obergefell v. Hodges, 135 S. Ct. 2584 (2015) allowed for same-sex marriage in all fifty states. What this opinion did not address, however, was parentage of children born into those same-sex marriages or legal rights of non-birth parents to children born into those marriages through assisted conception.
Under Virginia law, a marriage creates a presumption of parentage. Virginia Code § 20-158 states that the gestational mother or “birth mother,” and the spouse of a birth mother, are the two parents of a child resulting from assisted conception. This allows for a birth mother and her wife to both be listed on their child’s birth certificate when the Department of Vital Statistics records the child’s information.
However, the presumption of parentage does not necessarily convey legal … Read More »
In an unpublished opinion issued on April 21, 2015, the Virginia Court of Appeals upheld the ruling of a trial court that same-sex couples cannot cohabit under Virginia law. The case, Lutrell v. Cucco, might prove to be very important in the evolution of the law regarding same-sex relationships in Virginia.
In Lutrell v. Cucco, Mr. Lutrell (represented by Livesay & Myers, P.C.) filed a motion to terminate his $2,450 per month spousal support payment to his ex-wife Ms. Cucco based upon her cohabitation with another person for more than a year, pursuant to Virginia Code §20-109. That code section states in relevant part that:
[u]pon order of the court based upon clear and convincing evidence that the spouse receiving support has been habitually cohabiting with another person in a relationship analogous to a marriage for one year or more commencing … Read More »
As everyone knows at this point, same-sex marriage is now legal in the Commonwealth of Virginia. On October 7, 2014 Governor Terry McAuliffe signed Executive Order #30 titled “Marriage Equality in the Commonwealth of Virginia.” The order directed all state agencies, authorities, commissions and other entities within Virginia to quickly make any necessary policy changes to afford same-sex couples the same benefits as heterosexual couples.
Now that Virginia allows and recognizes same-sex marriages, same-sex couples will no longer need to travel outside the Commonwealth to resolve their family law issues. Below is a summary of the impact of marriage equality on four areas of family law in Virginia:
1. Divorce. Any couple with a valid marriage from Virginia, a foreign state or country may now file for divorce in Virginia, provided the parties were married in Virginia, last resided as a couple in Virginia, or one spouse has resided … Read More »
The U.S. Supreme Court announced on October 6, 2014 that it was not going to consider appeals from lawmakers in five states, including Virginia, who wished to uphold same-sex marriage bans. The result: same-sex couples now have the right to get married in Virginia.
As with any other couples, same-sex couples should always consider a premarital agreement, more commonly referred to as a prenuptial agreement or “prenup,” prior to entering into marriage. Especially as Virginia divorce law changes to accommodate same-sex couples, the use of a prenup can ensure that parties to a same-sex marriage are protected despite any shifts or ambiguities in the law.
Despite the widely held belief that prenups are only for the rich, a premarital agreement is something that every couple should consider. A prenup protects the premarital assets of one or both parties and allows a couple to contemplate … Read More »
As you may have already heard, the U.S. District Court for the Eastern District of Virginia has ruled that Virginia’s voter-approved 2006 Marshall-Newman Amendment (aka the Virginia Marriage Amendment) is unconstitutional. The Amendment modified the Constitution of Virginia to (a) prevent the legal recognition of any union or partnership between same-sex couples, and (b) define “marriage” as exclusively between one man and one woman. In Bostic v. Rainey, decided on February 13, 2014, U.S. District Court Judge Arenda Wright Allen found the Virginia ban on same-sex marriage to violate the Due Process and Equal Protection provisions of the Fourteenth Amendment to the U.S. Constitution. The judge wrote in her opinion that “[g]overnment interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country’s cherished protections that ensure the exercise of the private … Read More »
The Livesay & Myers Blog, as the rest of the nation, has closely followed the recent Supreme Court rulings on same-sex marriage. In a previous post, my colleague Ariel Baniowski discussed how Virginia law is impacted by the Supreme Court’s rulings. While these decisions do not modify Virginia marriage laws, the Supreme Court has radically altered the landscape of federal law, in a way that might affect thousands of Virginians.
In the case of U.S. v. Windsor, the Supreme Court struck down part of the Defense of Marriage Act (“DOMA”), ruling that the federal government can no longer restrict federal marriage benefits to solely opposite-sex couples. Virginia of course– especially Northern Virginia– is home to a large number of federal employees. During the recent “sequester” showdown, it was reported that some 322,198 federal employees and retirees call the Commonwealth their home. Should any of … Read More »
In an earlier blog-post, I apprised you of the who, what, and why of the two same-sex marriage cases before the Supreme Court—U.S. v. Windsor and Hollingsworth v. Perry. As you probably heard last week, the Court released its opinions in both cases on Wednesday, June 26th. So, what do, or don’t, these decisions mean for Virginia law?
Re-Cap of the Issues in the Two Same-Sex Marriage Cases
In U.S. v. Windsor, the Court was asked to address the constitutionality of the Defense of Marriage Act (“DOMA”), and whether or not it violates the Equal Protection Clause of the Fifth Amendment. In regards to same-sex couples, DOMA does the following: (1) restricts federal marriage benefits to solely opposite-sex couples, (2) defines “marriage” as a union between one man and one woman and defines “spouse” as a person of the opposite sex who is … Read More »
The end of any relationship can be a trying time for the parties involved, regardless of marital status. For married couples this difficult time is lessened with the aid of Virginia law and courts. Married couples in Virginia can use the judicial system to help them decide challenging questions such as how to divide their property and debts, to determine if spousal support will be paid and for how long, and to decide what should happen to the marital home. Married couples can resolve these issues at different times in their relationships—before the marriage, through a prenuptial agreement; during the marriage, with a postnuptial agreement; or after they separate, with a property settlement agreement. Alternatively, married couples can submit these questions to a judge for determination in a divorce proceeding.
Unfortunately, couples who are not legally married are not afforded these same … Read More »
The District of Columbia recently amended its D.C. Domestic Partnership Judicial Determination of Parentage Amendment Act (aka D.C. Parentage Act) to allow some non-D.C. residents additional adoption rights. The amendment, which took effect in March 2013, allows D.C. courts the power to grant an adoption to any child who is born in the District, even if the family does not reside in D.C.
The original D.C. Parentage Act, enacted in 2009, was the first law of its kind in the country. It allowed lesbian couples who were married, registered as domestic partners in D.C., or who signed a Consent to Parent, to adopt children born to the couple in the District. The Act conferred the status of parent on both partners in the couple, where one of the women gave birth to a child using donor insemination and the other woman consented to her … Read More »
You may have heard the term “DOMA” at some point in passing; you may have also heard “Prop 8” at some point in passing; you may be aware that there are two “gay marriage” cases before the Supreme Court; and you may be wondering how those much-awaited court decisions could affect Virginia’s same-sex marriage topography. So, what really is DOMA, what is Proposition 8, what are the Supreme Court cases about, and how will those court decisions impact Virginia?
The Two Same-Sex Marriage Cases Now Before the Supreme Court
U.S. v. Windsor. The first case before the Supreme Court with potentially large ramifications for same-sex marriage in Virginia is U.S. v. Windsor. The question for the Supreme Court in Windsor is the constitutionality of the federal “Defense of Marriage Act” (DOMA).
Enacted on September 21, 1996, DOMA is a federal law that restricts … Read More »