No-fault divorce law unconstitutional, judge rules

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Once again, a Fairfax County judge has extended rights available under the Virginia Code to a same-sex couple who otherwise would be barred from benefits conferred by state statutes.

Circuit Judge Stephen C. Shannon ruled that the two women had standing to seek divorce under terms of Virginia’s no-fault divorce statute, Code § 20-91(A)(9)(a), despite language that refers only to a “husband and wife.”

Shannon’s decision came in the same case in which he ruled in 2018 that a child born through assisted conception in a Connecticut civil union is considered a child “born of the parties” for purposes of a Virginia divorce.

The Aug. 23 no-fault ruling came in Celia v. Appel (VLW 019-8-074).

Obergefell’s impact

Lynne Celia and Valerie Appel are both seeking divorce. The two entered a civil union in Connecticut in 2006. The union was converted to a marriage under Connecticut law in 2010. Later, the couple sought a permanent split. Lengthy Fairfax County hearings are scheduled on custody and equitable distribution.

Shannon held a hearing just to decide the date of separation to narrow the issues.

Virginia law provides for a no-fault divorce based on a one-year separation. The exact language refers to living “separate and apart without any cohabitation and without interruption for one year.”

On its face, the law applies to a husband and wife. As Shannon observed, it does not specify whether same-sex married couples also may obtain a divorce based on a no-fault grounds.

Shannon looked to the same line of U.S. Supreme Court decisions that he invoked in ruling last year that Virginia’s assisted conception statute, Code § 20-158, was unconstitutional.

The 2015 opinion in Obergefell v. Hodges declared that same-sex couples should be afforded the same marital rights, benefits and responsibilities as heterosexual couples, Shannon said.

Under that standard, he reasoned, the Virginia no-fault statute is unconstitutional as currently written since it does not recognize a one-year separation as a ground for divorce for same-sex couples.

The generally preferred remedy is to extend benefits rather than to nullify a statute deemed unconstitutional, Shannon said.

“While permitting a same-sex couple to obtain a no-fault divorce would be consistent with the legislative purpose for enacting Va. Code § 20-91(A)(9)(a), abolishing no-fault divorces under Virginia law would cause further harm to the family unit by forcing spouses to publicly assign fault to one another in order to terminate their marriage,” Shannon wrote.

“On balance, the Court finds that extending the grounds of divorce for same-sex couples to include having lived separately and apart without cohabitation and without interruption for one year is a more appropriate judicial remedy,” the judge continued.

In an accompanying order, Shannon ruled that the parties had standing to seek a divorce pursuant to the no-fault statute.

Reviewing the couple’s history, Shannon also concluded the parties had lived separate and apart, continuously and without cohabitation since July 24, 2007.

Appel is represented by Donna Dougherty of Manassas, who declined to comment because the case is ongoing.

Celia is represented by Lisa Brown of Woodbridge who was unavailable for comment.

Assisted conception ruling

Shannon took a similar tack in 2018 when he found the Virginia assisted conception statue unconstitutional. The law provided rights to a husband of a gestational mother, but did not contemplate the rights of a wife of a gestational mother in a same-sex marriage.

The statute was amended this year to provide gender-neutral terminology.

Shannon ruled that even a child born during the civil union, not during the marriage, should be considered “born of the parties.” He noted the term was used in Virginia’s no-fault divorce statute where it extended the required waiting period when there are children involved.

Shannon’s Feb. 8, 2018, ruling was Appel v. Celia (VLW 018-8-011).

Updated Sept. 10 to fix byline.