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No-fault divorce statute applied to same-sex couples

Virginia Code §20-91(A)(9)(a), which allows a husband and wife to obtain a divorce if they live separate and apart without cohabitation and without interruption for one year, applies equally to same-sex married couples.

In this case, a same-sex married couple seeks what is commonly called a no-fault divorce under this code provision. The parties disagree on their separation date. The court will first determine the statute’s applicability to same-sex married couples. The court will then make findings concerning the couple’s separation date to narrow the issues regarding upcoming child custody and equitable distribution hearings.

Prior precedent

Same-sex married couples are entitled to the code’s no-fault divorce provision under the authority of Obergefell v. Hodges, 135 S. Ct. 2584 (2015), and Pavan v. Smith, 137 S. Ct. 2075 (2017).

In Obergefell, the “Supreme Court struck down those states’ laws defining marriage as a union between a man and a woman and ruled that same-sex couples have a fundamental right to marry under both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. …

“The Supreme Court also found that same-sex couples shall be afforded the same marital rights, benefits, and responsibilities as heterosexual couples.”

In Pavan, the Court reviewed an Arkansas a birth certificate statute specifying that if a gestational mother was married when the child was conceived or born, the husband’s name must appear on the birth certificate. The Arkansas Supreme Court ruled that the statute did not permit the name of a gestational mother’s female spouse but “did not run afoul of Obergefell.”

The Court reversed. “The Court ruled that a gestational mother’s wife must receive the same recognition as a gestational mother’s husband on a child’s state-issued birth certificate.”

The Virginia statute at issue in this case provides for no-fault divorces for husbands and wives but “does not recognize this ground for divorce for same-sex couples. The reasoning in Obergefell and Pavan made clear that this disparity violates constitutional due process and equal protection rights afforded to same-sex married couples. Therefore, Virginia Code § 20-91(A)(9)(a) is unconstitutional as currently written.”

One remedy is to declare the statute “a nullity.” Another remedy is to extend the statute’s benefits “to all married couples, including same-sex married couples.” The court will choose the second option because this “is the generally preferred judicial remedy.”

Separation date

Plaintiff’s amended complaint alleges a separation date of Aug. 1, 2016, but at a prior hearing, plaintiff asserted the separation occurred in June 2012. Defendant’s counterclaim for divorce alleges a separation date of July 24, 2007.

After reviewing the evidence presented, the court finds “that the parties have lived separate and apart without any interruption and without cohabitation since July 24, 2007. There has been no marital cohabitation since that time. While the parties discussed a possible reconciliation in 2008, it never occurred.”

Celia v. Appel. Case No. CL-2018-8735, Aug 23, 2019; Fairfax Cir. Ct. (Shannon). Lisa Brown for Plaintiff. Donna Dougherty, Amy N. Tobias for Defendant. VLW 019-8-074, 6 pp.