There was a lot of excitement in the Rio Road offices of Tucker Griffin Barnes on Monday, October 6. One of the firm’s partners, André Hakes, rushed out of the office at the news that the U.S. Supreme Court had denied the appeals of parties looking to uphold gay marriage bans in Virginia and elsewhere. Hours later, she married her longtime partner, Catherine Gillespie, on the steps of the Charlottesville Circuit Courthouse.
But on October 7, it was back down to business, said two of her colleagues at the firm. Mary Ann Barnes and Laura Blair Butler, who specialize in estate planning and family law, respectively, put their heads together with their colleagues to start trying to answer some of the legal questions gay couples in Virginia now face.
With gay marriage green-lighted, there’s one giant legal hurdle that same-sex couples should now be able to hop with ease, the attorneys said: adoption. Many couples whose partnerships have until now been unrecognized under state law are raising children who have a legal relationship with only one parent. That can finally change, said Barnes.
“The most efficient way would be to do a stepparent adoption,” she said. “Once an adoption is entered, the stepparent steps into the shoes of a natural parent, and there’s no difference.” And for couples who don’t have children yet but want to adopt, “it certainly frees them up now to adopt together,” said Barnes.
There are, however, still some legal gray areas for gay couples. One has to do with divorce—maybe not the most popular topic to bring up, said Butler, but one lawyers are definitely trying to parse right now.
Lots of Virginia couples went to other states where gay marriage was legalized years ago to tie the knot, said Butler, and if those marriages dissolve in the future, hitting on a legal definition of when that union actually began could prove tricky. Did the clock start whenever the marriage ceremony took place in Maryland or Massachusetts, or earlier this month, when the mandate ending Virginia’s gay marriage ban went into effect?
“It can matter in a lot of ways,” Butler said, including in determining spousal support and dividing property. “Same-sex marriage hasn’t been around long enough to really produce the kind of case law that’s going to give anybody reliability.”
Her suggestion? “Do some pre- or post-nuptial planning,” said Butler. A legal statement of a couple’s intent—say, that they saw themselves as married beginning on a certain date, regardless of whether their home state recognized it—could go a long way in clearing up ambiguity, she said.
But some of the legal loose ends can only be tied by the government, said Butler and Barnes, because embedded in various parts of Virginia’s state code are two words that are suddenly outdated: husband and wife.
Some bits of the law that deal with marriage and its attendant rights use the word spouse, the attorneys said. But there are at least two instances where the code crafters didn’t, including a particularly important statute that says a “husband and wife” can own property together as a single legal entity.
“Most married persons take property that way,” Barnes said, in part because it provides protection from creditors.
That raises the question of how quickly lawmakers will step in and change the language, the attorneys said.
“These are open doors,” said Butler, “and we don’t know what it’s going to look like for them to close them.”
Charlottesville Delegate David Toscano, the Democratic minority leader in Virginia’s House of Delegates and a family law attorney himself, said it’s difficult to say what that conversation will look like in Richmond. He’s supported marriage equality for a long time, he said, and he’s happy it’s here for Virginians sooner than many expected. But that’s not the case for many state lawmakers.
“There are significant numbers in the House of Delegates who are being brought kicking and screaming into this new era,” he said. “I think that you will see opposition to changing parts of the code, even if they are simply housekeeping measures designed to bring the code into compliance with what has become the law of the Commonwealth and, presumably, the law of the land.”
Lawmakers who still oppose gay marriage may dig in their heels when they’re faced with a vote on a language adjustment, Toscano said, because to them, it will be perceived as approving something they don’t support. He said the issue may end up getting sorted out in the courts, but Virginia may be arguing the point for a few years to come.
“I still think there will be political flash points along the way,” he said. “It’s hard to know how that comes out.