Generally speaking, filing for divorce of a same sex couple is the same as filing for divorce of a heterosexual couple. Same sex marriages have been allowed in Virginia since 2014 and Virginia also recognizes legal same sex marriages from other states. However, same sex divorces may involve some unique considerations.
For example, due to the delay in many states permitting same sex marriages, many same sex couples began their relationships and cohabitated for many years before getting married. However, under Virginia’s equal distribution rules, classification of property as marital or separate considers when the marriage began. That may cause some confusion for a couple that has been in a committed relationship for many years, but was only recently allowed to marry. This could have a significant impact on the classification of a couple’s assets that the couple may not have anticipated. A similar issue may arise with questions of spousal support. A court typically considers the duration of the marriage when determining spousal support and for same sex couples that may be significantly less time than the couple has been cohabitating and sharing assets.
Additionally, if a same sex couple has children, no more than one spouse can be a child’s biological parent. If the other spouse does not legally adopt the child, serious custody issues may arise.
Pre-nuptial and post-nuptial agreements can be helpful in planning ahead and clarifying some issues before a problem arises. These agreements can discuss issues such as valuing and classifying assets as of a particular date, other than the date of a legal marriage.
It is always a good idea to consult with a family law attorney when involved in divorce proceedings. However, especially for same sex couples, it’s important to consult a family law attorney experienced in same sex divorces and familiar with the types of issues that may arise. Our family law attorneys have experience handling same sex divorces and can help you navigate the process.