Same-sex marriage in Virginia became legal on October 6, 2014, following significant legal developments. The journey began with the United States Supreme Court's 2013 decision in United States v. Windsor, which struck down key portions of the Defense of Marriage Act (DOMA). This ruling granted federal recognition to same-sex marriages and prohibited the federal government from discriminating against married lesbian and gay couples.
In February 2014, a federal court in Norfolk ruled Virginia's Marriage Amendment unconstitutional in Bostic v. Schaefer. The Virginia Marriage Amendment, passed in 2006, had defined marriage as between one man and one woman and prohibited recognition of same-sex marriages from other states. The Fourth Circuit Court of Appeals affirmed this ruling, and when the Supreme Court denied review on October 6, 2014, same-sex marriages began in Virginia that very day.
Immediate Legal Recognition
Virginia's Governor quickly signed executive orders ensuring same-sex married couples received the same rights and benefits as heterosexual married couples under Virginia law. These orders addressed everything from state employee health benefits to adoption rights, signaling Virginia's commitment to full legal equality for LGBTQ couples.
Are Divorce Processes Different for Same-Sex Couples?
The divorce process is fundamentally the same for all couples in Virginia, regardless of gender identity or sexual orientation. Virginia family law statutes use gender-neutral language, referring to "spouses" rather than "husband and wife," ensuring equal application to same-sex couples.
However, LGBTQ couples may face unique challenges not encountered by opposite-sex couples, particularly regarding:
- Property acquired before legal marriage recognition
- Child custody and visitation when only one spouse is the biological parent
- Determining the marriage duration for couples who lived as spouses before legal marriage
- Potential bias or discrimination in the legal system
These complexities make working with a knowledgeable same-sex divorce attorney essential for protecting your rights and interests.
Historical Complications Now Resolved
Before same-sex marriage became legal in Virginia, couples in same-sex relationships faced enormous challenges when separating. They often required multiple lawsuits to resolve issues: a partition suit in Circuit Court for real estate, a separate suit in General District Court for personal property, and proceedings in Juvenile and Domestic Relations Court for custody matters.
Since 2014, same-sex couples can resolve all divorce-related issues, property distribution, spousal support, custody and visitation, and child support, in a single divorce proceeding, just like any other married couple.
What Are Virginia's Residency Requirements for Divorce?
To file for divorce in Virginia, you or your spouse must meet specific residency requirements:
- One spouse must have lived in Virginia for at least six months before filing the divorce complaint
- That person must live in Virginia on the day the divorce case is filed
These requirements apply equally to same-sex couples and opposite-sex couples. The six-month period ensures Virginia has proper jurisdiction over your divorce.
Special Considerations for Military Couples
For spouses serving in the U.S. military, being stationed at a base or on a ship located in Virginia counts toward the residency requirement. This accommodation recognizes that military service members may not have traditional residential ties despite being stationed in the Commonwealth.
Military couples should consult with a family law attorney who understands both Virginia divorce law and the unique legal issues affecting military families, as military service can complicate property division, custody arrangements, and other divorce matters.
What Are the Grounds for Same-Sex Divorce in Virginia?
Most same-sex couples, like most heterosexual couples, pursue no-fault divorce based on separation. Virginia allows no-fault divorce when spouses have lived separate and apart without cohabitation for:
- Six months if there are no minor children and the spouses have entered into a separation agreement
- One year if the couple has minor children or no separation agreement exists
"Living separate and apart" typically requires maintaining separate residences. "Without cohabitation" means no sexual relations during the separation period, even a single instance can restart the clock.
The separation must be continuous and accompanied by at least one spouse's intent for the separation to be permanent from the beginning.
Fault-Based Grounds for Divorce
Virginia law also recognizes several fault-based grounds for divorce that allow immediate filing without waiting for separation periods:
Adultery
Engaging in voluntary sexual intercourse with someone other than your spouse. Proving adultery requires "clear and convincing evidence," a higher standard than most civil cases. If proven, adultery bars the guilty spouse from receiving spousal support except in cases where denial would constitute "manifest injustice."
Cruelty
Physical abuse or conduct causing reasonable apprehension of bodily harm. Psychological cruelty may qualify if severe enough to endanger mental health or create genuine fear.
Willful Desertion or Abandonment
Intentionally leaving the marital home without the other spouse's consent, without justification, and with the intent to end the marriage permanently. This requires a one-year waiting period before a divorce can be granted.
Felony Conviction
Conviction of a felony after marriage with a prison sentence of at least one year, where the spouse is actually confined, and cohabitation has not resumed.
Special Considerations for LGBTQ Individuals
While sexual orientation and gender identity cannot legally be considered in divorce decisions, sexual conduct during marriage can have significant consequences. For example, an LGBTQ individual married to an opposite-sex spouse who realizes their true sexual orientation and begins a same-sex relationship during the marriage could face adultery charges.
This scenario wouldn't constitute discrimination under Virginia law, making it a critical consideration for LGBTQ individuals leaving heterosexual marriages.
How Does Property Division Work in Same-Sex Divorce?
Virginia follows equitable distribution for dividing marital property, meaning courts divide property fairly rather than equally (50/50). The court considers numerous factors, including:
- Contributions of each spouse to acquiring and maintaining property
- Duration of the marriage
- Age and health of each spouse
- Circumstances contributing to divorce dissolution
- Tax consequences of division
Pre-Marriage Cohabitation
Same-sex couples face a unique challenge regarding property division. LGBTQ marriages have only been legal since 2014, but many couples lived together as committed partners for years or decades before they could legally marry.
Under traditional Virginia law, only property acquired during the legal marriage qualifies as marital property subject to equitable distribution. This means if you cohabited for 20 years but only married legally in 2015, courts might only consider property acquired since your legal marriage as marital property.
Example scenario
A couple cohabitates for 10 years, merges assets 7 years ago, holds a commitment ceremony 5 years ago, purchases a home together 3 years ago, and legally marries 2 years ago. Traditional rules would subject only property acquired in the last 2 years to equitable distribution, potentially creating unfair outcomes.
Virginia courts are still developing precedents for how to handle these situations. Some jurisdictions may consider the cohabitation period when state prohibition prevented marriage, while others strictly apply marriage dates.
Protecting Your Property Rights
The best protection is a prenuptial or postnuptial agreement that clearly defines what constitutes marital property and how it should be divided. A same-sex divorce attorney can help you understand whether your property division might be affected by pre-marriage cohabitation and develop strategies to protect your interests.
Can Same-Sex Spouses Receive Spousal Support?
Yes, same-sex spouses can request and receive spousal support (alimony) under the same Virginia law governing opposite-sex divorces. Courts consider numerous factors when determining whether to award support, including:
- Property division arrangements
- Standard of living during marriage
- Duration of the marriage
- Age and physical/mental condition of each spouse
- Financial resources, obligations, and earning capacity of each spouse
- Contributions to the marriage (both monetary and nonmonetary)
- Circumstances contributing to the dissolution
Cohabitation Period Considerations
Some Virginia jurisdictions may consider how long spouses cohabited prior to legal marriage when determining spousal support. This is particularly significant for same-sex divorces since LGBTQ marriages have only been legal for a relatively short time, but couples may have lived as spouses for many years.
For example, if you supported your partner financially for 15 years before legally marrying, courts might consider this when determining whether you should continue providing support and for how long.
Adultery's Impact on Spousal Support
As with opposite-sex divorces, proven adultery generally bars the guilty spouse from receiving spousal support. This applies equally to same-sex couples and can have severe financial consequences for the spouse found guilty of adultery.
How Does Child Custody Work in Same-Sex Divorce?
Virginia family law recognizes two types of child custody:
- Physical custody: The right to determine where a child will live
- Legal custody: The right to make major decisions about the child's health, education, and religious upbringing
Both types can be awarded solely to one parent or jointly to both parents.
The Biological Parent Challenge
Child custody and child support in same-sex divorces can be particularly problematic when only one spouse is the biological parent of the child. This represents one of the most significant challenges LGBTQ couples face during divorce.
Without adoption
If the non-biological parent has not legally adopted the child, Virginia courts may treat them as a stepparent with limited or no custody rights. In contested custody cases, courts may award custody exclusively to the biological parent, potentially cutting the non-biological parent out of the child's life despite years of co-parenting.
With adoption
If the non-biological parent has formally adopted the child, both parents have equal legal rights. Courts will then determine custody and visitation based on the child's best interests using the same criteria applied in opposite-sex divorces.
Protecting Parental Rights
The absolute best protection for non-biological parents is formal adoption. Whether through:
- Second-parent adoption (when one spouse is biological and the other adopts)
- Joint adoption (when neither spouse is biological and both adopt together)
Adoption establishes full legal parental rights that courts must respect during divorce proceedings.
Many same-sex couples think they'll "get around to" adoption eventually, but this delay can have devastating consequences during divorce. If you're a non-biological parent who hasn't adopted your child, consult with a same-sex divorce attorney immediately to understand your options and risks.
Best Interests of the Child Standard
When both parents have legal rights (either both biological or through adoption), Virginia courts determine custody based on the child's best interests, considering:
- Each parent's relationship with the child
- Each parent's ability to meet the child's needs
- The child's preferences (when age-appropriate)
- Each parent's mental and physical condition
- Any history of abuse or neglect
Are There Unique Challenges LGBTQ Couples Face?
While Virginia law prohibits considering sexual orientation or gender identity in divorce and custody cases, LGBTQ individuals may still face implicit bias. Judges interpret and apply the law with their own perspectives and biases, which can influence outcomes.
Judicial discretion
Family law judges have tremendous discretion in making decisions about property division, spousal support, and custody. Which judge hears your case can significantly impact outcomes, and you have no control over judicial assignment in litigation.
Addressing bias
If you believe a judge discriminated based on sexual orientation or gender identity, you can appeal the decision. However, appeals are expensive, time-consuming, and offer no guarantee of success.
Discrimination Concerns
LGBTQ individuals, particularly those divorcing cisgender heterosexual spouses, may worry about discriminatory treatment. While outright discrimination is prohibited, subtle biases can manifest in judicial decisions.
An experienced LGBTQ divorce attorney understands these challenges and can:
- Prepare you for potential issues
- Document proceedings carefully to support appeals if necessary
- Navigate nuances in presenting your case
- Advocate strongly for your rights
Evolving Legal Landscape
Same-sex marriage and divorce remain relatively new areas of law. Precedents are still developing, particularly regarding:
- Property acquired during pre-marriage cohabitation
- Determining marriage duration for support purposes
- Non-biological parent rights when adoption didn't occur
- How courts should handle civil unions or domestic partnerships from other states
This evolving landscape makes working with a knowledgeable family law attorney who stays current with LGBTQ legal developments essential.
Should You Pursue Contested or Uncontested Divorce?
An uncontested divorce means you and your spouse reach an agreement on all issues without court intervention. You negotiate and settle matters like property division, spousal support, child custody, and child support, then present your separation agreement to the court for approval.
A contested divorce requires court intervention when you cannot reach an agreement on one or more issues. The court holds hearings or a trial where each side presents evidence and arguments, and a judge makes binding decisions.
Considerations for contested divorce :
- Longer timeline : Subject to court schedules, potentially months of delay
- Higher costs : Attorney time for hearings, discovery, and trial is expensive
- Less predictable : You cannot control the judge's decision
- More stressful : Adversarial process intensifies conflict
- Public proceedings : Court hearings are generally public record
Strategic Considerations for LGBTQ Couples
For same-sex couples, uncontested divorce offers particular advantages:
- Avoids potential judicial bias: You control outcomes rather than risking biased decisions
- Addresses unique issues privately: Handle pre-marriage property or non-biological parent custody through negotiation
- Preserves co-parenting relationships: Less adversarial process supports future cooperation
- Protects privacy: LGBTQ individuals may prefer keeping personal matters private
However, contested divorce may be necessary when:
- Your spouse refuses to negotiate reasonably
- Significant power imbalances exist
- Domestic violence or abuse occurred
- Your spouse attempts to exploit your non-biological parent status
How Can You Protect Your Rights?
The single most important step is consulting with a divorce lawyer who understands the unique challenges same-sex couples face. An experienced attorney can:
- Evaluate how Virginia law applies to your specific situation
- Identify potential issues before they become problems
- Develop strategies to protect your interests
- Navigate evolving legal precedents
- Advocate effectively for your rights
Look for an attorney who has successfully represented LGBTQ clients and understands issues like:
- Non-biological parent rights
- Property acquired during pre-marriage cohabitation
- Potential bias in the legal system
- How to present your case most effectively
Consider Prenuptial or Postnuptial Agreements
If you're not yet married or recently married, consider a prenuptial agreement that addresses:
- What property will be considered marital vs. separate
- How pre-marriage cohabitation affects property rights
- Spousal support terms
- How specific assets will be divided
If you're already married without a prenup, a postnuptial agreement can provide similar protections.
Complete Adoptions Before Divorce
If you're a non-biological parent who hasn't adopted your child, pursue adoption immediately, even if divorce seems likely. This critical step protects your parental rights and your relationship with your child.
Document Everything
Maintain clear records of:
- When you began living together
- Major purchases and who contributed what
- Your role in parenting children
- Financial contributions throughout the relationship
- Any agreements you and your spouse have made
Documentation becomes crucial evidence if disputes arise during divorce proceedings.
Moving Forward with Virginia LGBT Divorce
Same-sex divorce in Virginia operates under the same legal framework as opposite-sex divorce, but LGBTQ couples face unique challenges that require specialized knowledge and strategic planning. From property division issues stemming from pre-marriage cohabitation to custody challenges when only one parent is biological, understanding these distinctive concerns helps you protect your rights and interests.
Virginia law provides equal access to divorce for same-sex couples while still developing precedents for issues unique to LGBTQ relationships. Working with an experienced family law attorney who understands both Virginia divorce law and the specific challenges same-sex couples face ensures you receive knowledgeable guidance throughout this difficult process.