In the last few years, there has been a tremendous amount of change with respect to the recognition of same-sex marriage in Virginia.  As court decisions came down, Virginia’s state government moved quickly to keep pace with new rulings. However, statutes and common law are not as easy to alter and it will take time to see how Virginia’s body of family law applies to homosexual couples.  While the easy answer would be to apply the laws in the same way they apply to heterosexual couples, as with many things in life, it is not quite that simple.  For instance, traditionally marital property, (that is property acquired during the marriage), is subject to equitable distribution.  But what about the gay couple that had been for all intents and purposes “married” prior to the legalization of same-sex marriage?  Is the property they acquired during the time leading up to their marriage also subject to equitable distribution?  Right now it is hard to say, and you can begin to see the problem. 

For many homosexual couples the legalization of same-sex marriage was simply the law recognizing what they had already considered a marriage.  In those cases courts will have to grapple with defining when the “marriage” occurred for the purposes of deciding things like equitable distribution and spousal support.  Of course the issues do not stop there--the recognition of same-sex marriage impacts just about every area of family law in Virginia.  What follows is a brief overview of how the law has changed in the last few years and then a breakdown of what it means for gay couples as they deal with divorce, equitable distribution, spousal support, health insurance, custody, tax, adoption, estate planning, and agreements. 

The Beginning of Legal Changes

The impetus for much of the change in Virginia with respect to same-sex marriage actually began with changes in federal law.  In 2013, the Supreme Court of the United States struck down a key section of the Defense of Marriage Act (DOMA) in a case called United States v. Windsor.  That section of DOMA prohibited federal recognition of same-sex marriages and allowed states to not recognize same-sex marriages performed in other states.  From there federal administrative agencies began to redefine terms like “spouse” and “marriage” to include same-sex couples. 

Same-Sex marriage and Family Law ChangesChange in Virginia would quickly follow.  On February 13, 2014, a federal court in Norfolk ruled that the Virginia Marriage Amendment was unconstitutional in a case called Bostic v. Schaefer.  The Virginia Marriage Amendment was passed in 2006 and it defined marriage as between one man and one woman.  It also prohibited the recognition of same-sex marriages from other states where they were legal.  The Fourth Circuit Court of Appeals soon affirmed this ruling before a petition was made to the United States Supreme Court.  Then on October 6, 2014, the Supreme Court announced that it was denying the review of Bostic, meaning the decision that the Virginia Marriage Amendment was unconstitutional remained in place.  That same day, same-sex marriages occurred for the first time in Virginia. 

The next day Virginia’s Governor Terry McAuliffe signed an executive order that gave homosexual married couples the same rights and benefits as heterosexual married couples under Virginia law.  Other executive orders mentioned below would soon follow as the executive branch moved quickly to ensure the state government fully recognized same-sex marriage.  Below is a very brief overview of the current state of family law issues for same-sex couples.


Currently same-sex couples married in Virginia can file for divorce just as a heterosexual couple would.  Because the Virginia Marriage Amendment was struck down, Virginia also now recognizes same-sex marriages from other states.  However, there are two important considerations on this point.  First, a party to the marriage must reside in Virginia for six month prior to filing a divorce complaint.  Second, it is important to be sure the marriage in the other state was legal at the time it was performed.  In other words, the marriage had to occur after that state legalized same-sex marriage.

Equitable Distribution

The Virginia statute governing equitable distribution is not gender-specific, meaning it refers to people as spouses as opposed to husband and wife.  That means there is a strong presumption that it applies to homosexual couples in the same way it has been applied to heterosexual couples.  The only major area of concern here is what will constitute “marital property,” for the purposes of equitable distribution.  As discussed at the beginning of the article, marital property is typically property acquired during the marriage.  But many couples have been in relationships that they consider like a marriage, and the only thing stopping them from marrying is the state prohibition.  For instance, consider a gay couple that has been cohabitating for 10 years, merged their assets 7 years ago, had a religious commitment ceremony 5 years ago, bought a house together 3 years ago and was just married last month now that same-sex marriage is legal in Virginia.  If they were to get divorced, the traditional rule would be that only what they had acquired since their marriage last month would be subject to equitable distribution.  It is unclear if the courts will alter this standard to account for the fact that state prohibition found to be unconstitutional was the reason some couples did not marry.  For now the best course of action is a pre-marital agreement that clarifies what will be considered marital property in the event of a divorce.

Spousal Support

Spousal support raises the same issue as equitable distribution--that is, what will be considered the duration of the marriage?  This is particularly important for couples that include one person who has served as the primary caretaker for a number of years prior to the legal marriage taking effect.  Again, a pre-marital agreement can address these concerns. 

Health Insurance

The executive order that required state agencies in Virginia to recognize same-sex couples specifically stated that state employees in same-sex marriages could begin to enroll their spouses and dependents in the state health benefits program.  The Affordable Care Act also defined “spouse” and “dependent” in a way that should provide coverage for spouses and dependents of federal employees in same-sex marriages.


Spouses and former spouses in same-sex marriages should now qualify as stepparents for the purposes of showing that they are a “party with a legitimate interest” seeking visitation or custody.  It is unclear at the moment as to whether there will be a presumption in favor of a biological parent for homosexual couples.


The Virginia Department of Taxation published a bulletin on October 7, 2014, stating that same-sex marriages will be recognized for state income tax purposes.  That means same-sex couples can now file joint federal and state income tax returns. 


On October 10, 2014, Governor McAuliffe issued a bulletin to social services agencies in Virginia that clarified that same-sex couples could begin to legally adopt.  This also means that spouses can adopt the children of their same sex partner and if the child is biological the spouse can file for a stepparent adoption. 

Estate Planning

Widows and widowers that were in same-sex marriages will now be entitled to a share of their former spouse’s estate, just as a widow or widower from a heterosexual marriage would be.  This of course does not include situations where written agreements have altered the arrangements for the estate. 


New pre-martial agreements will be governed by the Virginia Pre-Marital Agreement Act and will be incorporated into any divorce decrees.  Prior to the recognition of same-sex marriage, agreements between gay couples were simply contracts.  These contracts may need to be revised in light of the new legal environment.

The attorneys of Smith Strong, PLC are closely following developments in family law with respect to same-sex couples.  Our attorneys are at the forefront of family law issues involving same-sex couples and can assist you with drafting pre-marital agreements or any other issue related to your marriage.   Please call one of our offices at 804-325-1245 (Richmond) or 757-941-4298 (Williamsburg). 


United States v. Windsor

Bostic v. Schaefer