In 2015, the U.S. Supreme Court’s ruling in Obergefell v. Hodges required all states to recognize same-sex marriage. Not every marriage ends happily, though, no matter the gender of the spouses involved. With same-sex marriage came same-sex divorce. The divorce process can be unpleasant, or even painful, especially when a case involves children or substantial assets. LGBTQ+ couples are subject to the same family laws as anyone else, although legal rights on child custody issues can be less certain. You have enough to worry about dealing with the emotional and financial issues that come with divorce. Let the family law attorneys at Montagna Law help guide you through the legal process of a divorce, whether it is contested or uncontested. To request a consultation with a member of our office, call (757) 622-8100 or complete the online contact form today.
The divorce lawyers at Montagna Law are a knowledgeable and resourceful team with more than 50 years of experience. We have provided vigorous and caring advocacy to hundreds of families. We offer hands-on assistance in a wide range of family law matters, representing our clients’ interests with compassion and care. Our team includes certified mediation experts who can help when a case does not need to go to trial.
Same-sex couples going through a divorce have the same legal issues and requirements as heterosexual spouses under Virginia family law.
In order to file for divorce in Virginia, you or your spouse must meet the following residency requirements:
For spouses who are serving in the U.S. military, being stationed on a base or ship located in the state counts for the residency requirement.
Virginia allows “no-fault divorce,” meaning that a couple can get a divorce without evidence that anyone was at fault for the breakup of the marriage. In order to obtain a no-fault divorce, the spouses must have lived apart with no cohabitation for a minimum period of time:
“No cohabitation” means that they cannot, at any time during the period of separation, have moved back in together, such as with the intention of trying to reconcile.
Virginia family law also provides fault-based grounds for divorce:
These are discussed in more detail further below.
You and your spouse may enter into a separation agreement that covers all of the important issues involved in the divorce, such as division of property, child custody, and child support. You may present this agreement to the court and ask the judge to approve it as part of your final divorce decree.
The judge must confirm that the agreement meets the requirements of state law, particularly if children are involved. Judges are usually more than happy to accept separation agreements and uncontested divorces since that means they can get your case off of their docket.
A divorce is a legal proceeding in a Virginia court, much like a lawsuit. Just as you can settle a lawsuit before going to trial, you can reach a settlement agreement with your spouse, also known as a separation agreement, to resolve the issues in your divorce. If you cannot come to an agreement, you may need to ask the court to decide for you after a trial.
A divorce that you and your spouse are able to resolve without the court’s help is known as an uncontested divorce. If you have to have hearings or a trial, your divorce is contested.
The process for an uncontested divorce is usually much faster than the alternative. A contested divorce will be at the mercy of the court’s schedule, and you could have to wait weeks or months to get a hearing date.
Uncontested divorces also tend to be more predictable, since they mostly consist of negotiation and discussion. For this reason, they tend to be less expensive. A contested divorce can take a very long time and cost a substantial amount of money, while many divorce lawyers will charge a flat fee for an uncontested case.
Several fault-based grounds for divorce are possible in Virginia. The spouse alleging fault has the burden of proving it in court. The grounds for divorce do not change regardless of the sexual orientations of the couple seeking a divorce.
A spouse may seek a divorce on the ground that the other spouse has engaged in cruel treatment. Virginia law defines “cruelty” as the infliction of bodily injury that endangers “life, limb, or health,” or conduct that places someone in reasonable fear of this kind of injury. Psychological cruelty may meet this standard if it is bad enough.
A person may seek a divorce because their spouse has committed adultery. This is a common fault-based ground for divorce in Virginia, but it is also difficult to prove. State law requires “clear and convincing evidence” that a spouse has engaged in adultery, which can be a difficult burden of proof to meet. The evidentiary requirement can add time to the divorce process. If a court finds that a spouse has committed adultery, that spouse may not be eligible to receive alimony or spousal support.
Abandoning one’s spouse for at least a year with “willful and malicious intent” is a ground for divorce. Determining intent is important in this situation. A spouse who flees the household out of fear of abuse, for example, may have been acting out of self-preservation instead of “malice.”
Desertion is essentially the same as the ground for divorce based on abandonment.
Conviction of a felony may be a ground for divorce if the spouse receives a prison sentence of at least one year.
Virginia family law identifies two types of child custody:
Same-sex spouses who are seeking a divorce will likely face challenges when children are involved. Marriage, divorce, and child custody among LGBTQ+ couples are still very new to our legal system. Your judge may not have the same ideas about same-sex marriage as you. It is best to do everything you can to reach an agreement about custody and visitation.
If you leave the issue to the courts, the most likely outcome is that the court will award custody to the biological parent. Virginia law considers the other spouse to be a step-parent with no specific custody rights. If, however, the non-biological parent has adopted the child, the court is more likely to look at what is in the child’s best interests.
The divorce attorneys at Montagna Law handle LGBT family law matters in the Hampton Roads area, including Virginia Beach, Norfolk, Chesapeake, Portsmouth, and Suffolk. Our legal services can guide you through areas of law that are still developing. To request a consultation with a member of our office, call (757) 622-8100 or complete the online contact form today.
*The consult fee is $50 for up to ½ hr phone consults and $100 for up to 1 hr in-person consults. These consult fees are then applied to the retainer if the client retains us within 30 days of the initial consult.