Family Law and Divorce Lawyer
While Virginia now recognizes both same-sex and heterosexual marriages, the laws surrounding the rights of same-sex couples continue to evolve and a same sex couple may encounter certain complications when getting divorced, adopting, or seeking custody and/or visitation with their child. If you and your partner are ending your relationship, it is important to speak to an experienced family law attorney. K. Page Kistler, P.C. has been representing LGBT clients since the firm’s inception in 2004 and we can help you to understand and protect your individual and parental rights.
On October 6, 2014, same-sex marriage became legal in Virginia. Now that same-sex marriages can be performed in Virginia, this means that same-sex couples may also be divorced in Virginia. In addition, any couple that was legally married in another state and is now living in Virginia can be granted a divorce in Virginia, so long as at least one party has resided in Virginia for at least six months prior to the filing the divorce.
During your divorce, the Court will consider a number of factors to determine how to divide your marital property and debt and whether spousal support, also called alimony, should be awarded to either you or your spouse. One factor that a Court will likely consider when determining division of property and spousal support is the length of the marriage, from the date of marriage to the date of separation. Because Virginia previously did not recognize same-sex marriage, a same sex couple may have lived together, or even been married in another state, for much longer than their marriage has been legal in Virginia. This is just one way in which the determination of spousal support and the division of property during a divorce proceeding can be more complicated for same-sex couples.
In addition to spousal support and equitable distribution of property and debts, same-sex couples who separate may also encounter issues related to parental rights, custody, and visitation of their child. In Virginia, parental rights, as well as rights to custody and/or visitation are typically granted to the “legal parents” of a child, whether adoptive or biological. In same-sex relationships involving children, typically only one parent, and sometimes neither parent, is biologically related to the child. While adoption is the best way to ensure that both parents have equal rights to their child, situations do arise where the non-biological parent has not adopted the child and the relationship comes to an end.
When a same-sex couple separates or divorces and the biological parent refuses to allow the former partner to have meaningful contact with the child, the non-biological parent may file for custody and/or visitation with the child. The standard applied when determining whether to award custody or visitation to a non-biological parent will likely depend on a variety of factors, including whether the parties are married and, if so, whether the child was born during the marriage, whether artificial reproductive technology was used during conception, et cetera.
Because Virginia law regarding custody and visitation for same-sex couples continues to change, it is imperative for LGBT parents to speak with one of our experienced family law attorneys to ensure that their rights are fully protected and their relationship with their child is protected.
Adoption is the most effective way to ensure that both partners in a same-sex relationship have equal, complete parental rights to their child. Because same-sex marriage is now recognized in Virginia, a married same-sex couple can either adopt a child together or, in a situation where one spouse is biologically related to the child and the other is not, the couple can jointly file for a stepparent adoption.
The effect of an adoption is that the non-legal parent will have equal parental rights to the child as if the child was biologically born to both parties. In addition, upon receipt of a Final Order of Adoption, the Department of Vital Records will revise the child’s birth certificate to include the names of both spouses as the child’s parents.
It is important to note that unmarried couples are not permitted to adopt a child together under Virginia’s current law. Unfortunately, unless Virginia’s adoption statutes are amended, unmarried same-sex couples will not be able to rely on adoption as a way to establish their parental rights, and will instead need to pursue other legal action in order to protect themselves and establish a legal relationship with the child.
Transgender individuals may wish to change their name and/or gender marker on various forms of identification, including their birth certificate, social security card, driver’s license, and/or passport. Pursuant to Virginia statute, you have the right to change your name as long as you are not doing so for fraudulent purposes or in any way that interferes with the rights of others. Because the procedure for obtaining a name change varies depending on the city or county where filed, it is important for transgender individuals to seek guidance from a knowledgeable attorney at K. Page Kistler, P.C. regarding their rights and protections under the law.
To obtain an Order changing one’s gender marker on his or her birth certificate, the process is a bit more involved. Virginia statute states that a person’s birth certificate will not be amended unless a Court enters an Order indicating that the sex of an individual has been changed by medical procedure. Because “medical procedure” is not clearly defined, a Court has some degree of discretion when determining what types of procedures will qualify. In some instances, an affidavit from one’s doctor detailing the medical procedures that have been performed will suffice. In some other cases, the Court has required the individual to attend a hearing to provide more information to the Judge regarding the reasons for the requested gender change. With the help of our experienced attorneys at K. Page Kistler, P.C., the process will run more efficiently and a Court hearing can usually be avoided.