The 2015 Supreme Court decision in Obergefell v. Hodges enshrined the right for same-sex couples to get married. With the right to get married also comes the right to get divorced when your marriage is no longer the right fit for you.
Unfortunately, while same-sex couples have these privileges and protections, same-sex divorces can come with significant complications because of how recently these rights were gained. Working with a Norfolk divorce lawyer who understands the legal intricacies same-sex couples face when pursuing a Virginia divorce can help make what is often a heart-wrenching process a little bit easier.
If you find yourself with the difficult decision to dissolve your marriage, the compassionate and understanding LGBTQ+ divorce attorneys at Montagna Law are here to support you. Learn about the special considerations for LGBTQ+ divorce in Norfolk, Virginia and how our law firm can help you fight for a fair divorce. Call us for a consultation at 877-622-8100.
In the Commonwealth of Virginia, same-sex divorce follows the same terms as different-sex couples. The primary criteria for filing for a Norfolk divorce is that you must meet Virginia’s residency requirements.
To file for a Virginia divorce, either you or your spouse must be living in the Commonwealth for at least six months prior to filing for divorce papers with the court. This requirement is the same for both different-six and same-sex couples.
Virginia permits no-fault divorces, which means you can file for either a contested or uncontested divorce. To obtain a no-fault divorce, you and your spouse must be separated for a period of at least one year. However, if you do not have any minor children, the separation period is shorter – at six months – if you and your spouse have a separation agreement in place.
Do not try to file for a Virginia divorce any earlier than the stipulated time frame, as you will be unable to do so. Divorce is an emotional decision that involves making choices that will impact your future. Your Norfolk family lawyer can sit down with you to discuss the particulars of your case. They will then determine any complications you might encounter during the difficult process you will be facing, helping to identify possible solutions.
Since the decision of Obergefell v. Hodges, Virginia does not recognize domestic partnerships, civil unions, or common law marriages. While these types of relationships are common today, they are no longer legally binding unions. With same-sex marriages now legal, the only legally binding relationships in Virginia are married couples.
There is one complication LGBTQ couples face that different-sex couples do not. Their marriage must have been legal in the state in which they originally wed. For example, if a couple previously cohabitated in a state where same-sex marriage was not legal, moving to Virginia does not mean they have a legal marriage simply because the Commonwealth now recognizes same-sex marriages. The marriage must have occurred in a state where it was performed legally.
Divorces are often filled with anguish, especially if one spouse is hurt emotionally or physically by the other. When events happen during the course of a marriage that directly affect the relationship and lead to divorce, one spouse may have grounds against the other.
The grounds for LGBTQ+ Norfolk divorces are exactly the same as they are for different-sex couples. Grounds for fault-based divorces in Virginia do not consider the couple’s genders. The following are grounds for divorce in the Commonwealth.
To file for a fault-based divorce in Virginia, a couple must also meet the same six-month residency requirements as no-fault divorces require.
Virginia is not a state where a court necessarily divides assets equally, but it aims to divide fairly. One complexity many LGBTQ divorces encounter is the actual division of property. Many LGBTQ couples were already in long-term relationships prior to their marriage but were unable to legally marry until recent years. Yet, they still built their lives together, acquiring assets. Due to the prevention of a legal marriage for so many decades, this creates complications since these couples spent years accumulating assets as unmarried couples.
When a Virginia court considers equitable property issues, the date the marriage became legally binding is a critical factor, along with which assets count as marital property. For example, if an LGBTQ couple lived together before their marriage was legally recognized, their marital date is subject to different interpretations in a court of law. It could be the date marriages were recognized in Virginia, recognized in another state, the total time frame the couple cohabitated, or when the couple decided they were married.
Due to this wide range of potential dates, it is imperative to speak with an experienced LGBTQ divorce attorney in Norfolk who can work through these intricacies and help you present a fair and equitable distribution when it comes to dividing marital property.
Due to all the complications associated with same-sex divorce when it comes to the division of marital property, a prenuptial agreement can help guide decisions when dividing assets and settling other issues, such as spousal support.
Virginia has addressed the formalities of premarital agreements under § 20-149. It is a good idea for any couple to discuss prenuptial agreements as they make sense for many people. Unlike marital status, all states recognize same-sex prenuptial agreements if they are written correctly.
Child custody is one of the most difficult issues in divorce that any parent faces. It is frightening for a mother or father to face a situation where they may lose the ability to see their children on a regular basis. LGBTQ couples face an additional complexity in divorce when it comes to child custody – biology.
Unlike different-sex couples, parents in a same-sex relationship cannot both share biology with any children they have been raising together. As a result, custody issues can emerge, with biology being a primary deciding factor. For the non-biological parent who has not legally adopted their child, they lose eligibility to file for custody. Non-biological parents who adopt their children preserve their custody rights since the court will view both parents as equal.
If you are facing a child custody court case, you will definitely want to speak with an experienced Norfolk family law attorney who thoroughly understands how to approach this issue in same-sex divorces.
Since Virginia does not recognize non-biological parents as equal to biological parents in child-related matters, this means the non-biological parent is also not responsible for child support. As with child custody, the exception is if the non-biological parent has legally adopted any children from the union or is listed on the child’s birth certificate.
In most Norfolk, Virginia divorce cases, there are specific factors that will influence the court’s decision when it comes to spousal support. Gender is not one of them. Despite its gendered history, spousal support, also often referred to as alimony, no longer relies on gender. Either spouse could theoretically obtain spousal support if they meet Virginia’s criteria. Factors influencing the court’s decision on spousal support include the following:
Virginia also considers a few other factors when determining spousal support, pursuant to state law § 20-107.1. However, spousal support can be difficult to determine because it’s based on the length of the marriage, not the length of the relationship – and LGBTQ couples couldn’t legally marry until 2015. Either way, spousal support ends when the one being paid support cohabitates with another partner for over a year, regardless of the cohabitant’s gender.
Many military families live in the Hampton Roads area. Persons serving in the U.S. armed forces who are stationed in Norfolk or other areas of Virginia and seeking a divorce can still file if they meet specific criteria set forth by the Commonwealth.
You can apply for divorce in Virginia if you or your spouse have lived/been stationed there for 6+ months. Additionally, the U.S. military applies the same rules for same-sex couples, including in divorce, such as the 10/10/10 and 20/20/20 rules for spousal benefits, etc. As an LGBTQ spouse, you will want to speak to an experienced Norfolk divorce attorney who understands specific laws regulating military divorces that may impact your situation, such as the Uniformed Services Former Spouses Protection Act (USFSPA) and the Servicemembers Civil Relief Act (SCRA).
With all the complications of same-sex divorce, some divorcing couples will seek out a mediation solution to help them reach settlement agreements for their legal issues, avoiding long, drawn-out court battles. This course of action is often a good way to smooth over the proceedings and reduce the stress and expenses associated with going to court.
Montagna Law has been serving Norfolk families for decades. With our years of experience, we have established ourselves as a well-known family law firm in the Hampton Roads region. Maintaining transparent attorney-client relationships is very important to us, and we pride ourselves on providing compassionate and responsive legal services to each client. When you work with us in any area of law, you will always have access to speak to your attorney. You can also expect to receive strong advocacy for a legal solution that is in your best interests.
Hear what some of our clients have to say about working with our legal team.
“I have been a client of Montagna Law since 2014. Because the customer service is exceptional, I have established a rapport with everyone in the office. As a customer for 8 years, it is noted that this firm goes above and beyond for the clients.” -Eric E.
“Montagna Law is by far the best law office for representation. They honestly care about your case and go far beyond the call of duty to represent you and ensure that you receive all that you are entitled to.” -Katy J.
“Tyler Leard was great! Communication was outstanding!! Would highly recommend!! Thank you!” – Wade S.
For many couples, it is difficult to believe a formerly happy relationship no longer works, and a divorce appears to be the best solution. It can be a very anguishing experience for individuals to face. In LGBTQ divorces, the uncertainty associated with issues, such as children and property division, can be very difficult. Obtaining legal representation is your best option when facing a divorce.
The caring and compassionate Norfolk divorce attorneys understand the unique challenges LGBTQ couples face when a marriage is dissolving. If you find yourself in this situation and need legal advice, Montagna Law wants to help. To obtain a case evaluation, contact our law office at 877-622-8100 or fill out our online contact form.
Montagna Law has been proudly serving Norfolk and the entire Hampton Roads area for decades, including Virginia Beach, Chesapeake, Newport News, Portsmouth, Hampton, and Suffolk. If you need assistance in your divorce case, in another family law matter, or are in need of other legal services, Montagna Law is also equipped in other practice areas of the law, such as estate planning and personal injury.
Jon Montagna received a Bachelor of Arts in Literature from American University in Washington D.C. and graduated Cum Laude from the University of Miami School of Law in 1999. Jon practices law in the Hampton Roads Virginia area.