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Well, the following is no longer the case. [Gay and Lesbian relationships are in most ways unrecognized by Virginia law. As a result, not only is there no provision for gay marriage – there’s no provision for gay divorce.] Same-sex marriage is now legal in Virginia, yet ending a long term relationship in which there are substantial jointly held assets can be a huge problem.
If you were not married, a partition suit is one way to accomplish the division of property, so that everyone can move on with their lives. Partition can apply to personal property, but is more commonly used to force the sale of jointly owned real estate, particularly if there is substantial equity. If you are stuck in a loveless same-sex mortgage, a partition suit may be the way out.
2. Now that same-sex marriage is legal in Virginia, how should couples take title to property?
When will the General Assembly pass bills that define how same-sex married couples take title to real estate? Unfortunately not this last session.
Most married persons take title as “tenants by the entirety as at common law and not as tenants in common”. This type of title has several benefits for the married couple. These benefits still do not yet apply to same-sex married couples, since Virginia Code uses language that limits “T by E” deeds to “husband and wife” not “spouses”.
Since this past October, when same-sex couples gained the legal right in the Commonwealth of Virginia to marry, members of the Virginia General Assembly have been working (and arguing) over a whole host of related laws, not the least of which pertains to real estate. Some proposed bills (SB 1211, HJ546, HB1600) about revising references of gender-specific language and terms were killed in February.
Tucker Griffin Barnes has come across an attempted work-around to this problem, wherein the deed contains language that specifically states it is the same-sex married couple’s intention to take title as “tenants by entirety”, by using the words “a married couple”, in place of “husband and wife”. If “tenants by the entirety” is not recognized for this same-sex couple, then the deed states the couple’s intention to alternatively take tenancy with right of survivorship.
It is not clear if this language or other similar language in a deed will be successful to create a “Tenants by the Entirety” ownership. Hopefully these attempts will not be needed for too long, if the Virginia General Assembly corrects this problem next session.
On October 6, 2014 with the U.S. Supreme Court’s denial of certiorari, same sex couples could marry. Many people made a bee line to the court house that day to witness their friends tie the knot and to witness history. It was a great day. Now that the initial joy and shock are over, couples are asking “What about the kids?”
In the past, it has been a mixed bag of tricks that same sex couples utilized to gain some semblance of family in the community. From a legal standpoint, it was like hitting a moving target. Dealing with education issues, medical care and even family interactions required drafting documents that traditional couples never had to even think about. According to my reading of the Virginia Code, those days are over.
If your spouse has a child, natural or adopted, you are now eligible to adopt as a step parent. If you and your spouse wish to pursue an international adoption, when you return with your child to the states, both of you can readopt as a married couple. If you wish to pursue an interstate, parental placement or agency placement adoption, they can all be accomplished the same as a traditional married couple.
Tucker Griffin Barnes congratulates all those couples that have tied the knot, urges them to dump the “bag of tricks” we previously drafted and welcomes them back to pursue traditional adoptions!
Under DOMA (Defense of Marriage Act) and Virginia’s constitutional amendment prohibiting gay marriage, LGBT persons faced special estate planning and related concerns. For instance, same-sex couples were denied access to their partners’ social security benefits. Now that same-sex couples in Virginia can legally marry, there are things you can do, however, to plan for your future. Estate planning documents can be tailored to fit the special circumstances of LGBT families, and protections can be put in place to minimize the negative impact of certain laws, and to capitalize on legislation, which benefits the community in one way or another.
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