Same Sex Marriage and Children

Last week, I posted about some potential areas of the law that may need examination to be consistent with the recent court rulings that allow same sex marriages to proceed in Virginia. Children and child custody is another area of the law where rights to custody, decision making, and visitation start with the premise that the two parents who are married are the biological parents. While there are provisions in the code about parental status in assisted reproduction matters and there are provisions in other parts of the law about who else has a legitimate interest to legal and physical custody rights regarding a child, the burden of proof can be different if a person is not a biological parent and can pose a large hurdle for the non-biological (even if married) parent. If you are married and have a child together, consultation with a family law attorney about how to memorialize your rights and desires about your child in the event of divorce or death is important. If you are not yet married but are engaged or considering marriage, talking to a family law attorney about how a prenuptial agreement can help protect your intentions if children are part of your future family is a good step to take.

Real Estate Issues in Same Sex Marriages

There has been a lot of celebrating in the past few weeks with the US Supreme Court’s decision not to hear Virginia’s same sex marriage case, thereby leaving same sex marriage in Virginia to proceed full steam ahead. With this momentous decision, however, same sex couples need to understand where some of the law has not caught up yet. Real estate is a good example. The way property is owned as a husband and wife provides the married couple additional protections in death and debt. Below is the current statute:

§ 55-20.2. Tenants by the entireties in real and personal property; certain trusts.

A. Any husband and wife may own real or personal property as tenants by the entireties. Personal property may be owned as tenants by the entireties whether or not the personal property represents the proceeds of the sale of real property. An intent that the part of the one dying should belong to the other shall be manifest from a designation of a husband and wife as "tenants by the entireties" or "tenants by the entirety."

B. Any property of a husband and wife that is held by them as tenants by the entireties and conveyed to their joint revocable or irrevocable trusts, or to their separate revocable or irrevocable trusts, shall have the same immunity from the claims of their separate creditors as it would if it had remained a tenancy by the entirety, so long as (i) they remain husband and wife, (ii) it continues to be held in the trust or trusts, and (iii) it continues to be their property.

(2001, c. 718; 2006, c. 281.)

Importantly, the statute is referenced assuming a man and woman are married. Therefore, the question arises of whether a same sex couple who gets married and then purchases property gets this same level of protection. Careful consultation with a family law attorney and real estate attorney is important.

What does the US Supreme Court decision today mean for same-sex marriage in Virginia?

MARRIAGE EQUALITY IN VIRGINIA FOR SAME-SEX COUPLES: On October 6, 2014, the Supreme Court denied review of seven Federal Circuit Court rulings (from the Tenth, Seventh, and Fourth Circuits) that held state bans on same-sex marriage violated the U.S. Constitution. In denying review, the Supreme Court has effectively allowed those favorable rulings to stand. This means  Virginia will soon be added to the list of states allowing same-sex marriage and that the stay previously issued will be lifted very soon, if not today. 

What does this mean for Virginia residents? The decision of the Fourth Circuit Federal Court of Appeals will stand and same sex marriages will now be performed in and recognized in the Commonwealth of Virginia.



This decision has important impact on both couples who were married previously in jurisdictions other than Virginia and on couples now considering marriage in Virginia.  Consider consulting a family law attorney to be sure you understand your rights that come with this landmark development.

How should I prepare for my meeting with my divorce attorney?

By Gwen M. Massie, Esquire -- Hall and Hall, PLC

When you are going through a divorce or in a custody battle, it is understandable that you find yourself operating in “crisis mode.” Your mind is probably going in a million different directions, you think of questions in the middle of the night, and analyze every situation.  We do our best to answer your questions and advise you during this time.  In preparing for a meeting with your attorney, here are a list of pointers to help the meeting go smoothly and help get all your questions answered:

    1) Set up a meeting a few days or a week away so that you have time to prepare your questions and don’t forget anything; be sure to write them down.

    2) Talk to friends and family members and see if they have any questions or can help you come up with a list of things to discuss with your attorney

    3) Read through any materials your attorney has already provided to make sure that doesn’t spark additional questions

    4) Bring your list of written questions and a notebook to write down the attorney’s answers so you can refer to it later

    5) Let the attorney know if you process information a certain way; for example, you are a visual learner and need to look at what you are discussing with your attorney in order to understand it.  This will help the attorney prepare for the meeting.

What can be income for child support?

Recently, the Court of Appeals of Virginia, in Oley v. Branch, a case of first impression, found that income from a Federal Pell Grant counted as income to a party for the purposes of determining child support.  Despite argument that this money was to be used for the party's education where Federal Pell Grants are issued "to help financially needy students meet the cost of their postsecondary education," the Court considered that Federal Pell Grants are not limited to the payment of tuition, and may also be used to pay the costs of room and board, books, and services. The Court also looked to Virginia Code section 20-108.2,  which defines gross income for the purposes of calculating child support, and to the case law.  In Frazer v. Frazer, the Court previously held that "Under Code § 20-108.2(C), gross income includes 'all income from all sources,' and unless specifically excluded, any income from any source is subject to inclusion."  23 Va. App. 358, 378, 477 S.E.2d 290, 299-300 (1996).  Other governmental assistance programs are specifically excluded under Code 20-108.2(C), such as supplemental security income benefits.  However, the Court concluded that the Federal Pell Grant does not fall into any of the exceptions, and is not specifically named as an exception. Therefore because the Code does not specifically exclude federal education grants, like the Pell Grant in this case, the Court found that they are to be considered income for purposes of support.