WHAT YOU SHOULD KNOW ABOUT SAME-SEX MARRIAGE IN VIRGINIA
On Monday, October 6, 2014, the United States Supreme Court denied certiorari
(review) of seven different rulings from the federal courts of appeals (coming to the Court from
the Fourth, Seventh and Tenth Circuits). The Fourth Circuit Court of Appeals ruling held that
Virginia’s ban on same-sex marriage was unconstitutional. Since the Supreme Court denied
review, the Fourth Circuit Court of Appeals’ ruling stands and same-sex marriages will be
permitted in Virginia. At 1:00 p.m. on October 6, 2014, same-sex marriage began to be
permitted across Virginia.
What does this mean for the citizens of Virginia?
If you are already married to someone of the same sex in another state that legally
permitted same-sex marriage—
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You are legally married for all purposes under Virginia law as you have
been for the last year under Federal law (since the Defense of Marriage
Act (DOMA) was determined to be unconstitutional).
If you are not the legal parent of your spouse’s child(ren), you may obtain
a step-parent adoption in Virginia to become a legal parent of those
child(ren).
You and your spouse may legally adopt a child jointly.
You may take title to property in Virginia as Tenants By The Entireties,
which has significant advantages for estate planning purposes and to
avoid collection activities by creditors of one spouses. [Property
previously titled may be re-titled to change the ownership to tenants by
the entireties. This does, however, require a new deed to be recorded.]
Your tax returns for Virginia must now indicate your status as married, as
they have for your federal returns for the last year (since DOMA was
struck down).
You may enter into Post-Nuptial Agreements, Property Settlement
agreements and/or custody and visitation agreements with your spouse.
You may now obtain a divorce in Virginia, including equitable division of
marital property, spousal support, child custody, child visitation, and fault
based divorces.
If you are not current married, but considering marrying a person of the same sex –
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You may enter into a Premarital Agreement establishing rights and
obligations upon marriage and potentially upon divorce.
You may obtain a marriage license and get married in Virginia.
Once married, all of the rights set forth above will apply.
Your marriage may cause your new spouse to acquire rights in your
retirement plan benefits.
You may acquire new federal Family & Medical Leave Act rights for your
spouse.
If you are an employer of Virginia citizens –
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For Virginia tax purposes, same-sex married employees will now be
treated as married, as they have been for federal tax purposes.
Employees marrying same-sex partners will be eligible to be treated as
married for many purposes, including group health plans, special
enrollment rights and FMLA leave.
For retirement plan administration, new spousal waivers may be required
if employees wish someone other than their new same-sex spouses as
beneficiaries, etc.
The attorneys in McCandlish Holton, P.C.’s Family Law Team, Employment Law Team
and Employee Benefits Team can provide assistance with the adoptions, pre-marital and postnuptial agreement, re-titling property, employee benefits, and employment law issues arising
out of the recent court decisions.
This article is provided for information only. While we believe the information to be
accurate, this article should not be construed as legal advice. This article does not create an
attorney-client relationship between McCandlish Holton, P.C. and the reader. Every situation is
different and you should consult with counsel regarding your particular facts and
circumstances.