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LGBTQ+ Divorce in the Virginia Court System

The LGBTQ+ Divorce in the Virginia Court System

By Alice Ahearn, Partner, Family Law Practice and Pro Bono Practice Chair

Divorce is a stressful process for everyone, but for LGBTQ+ divorcees there are many additional factors to consider. Even some of the simplest steps of the process, like listing the parties involved in the case, can prove complicated for LGBTQ+ couples. Beyond that, with legal threats to LGBTQ+ individuals spreading across the country and the Supreme Court overturning rights that have existed for decades, the legal landscape can be hard to navigate so having an attorney equipped to handle these issues is incredibly important.

Discrimination in Divorce and Custody Cases

Every case is different, but one of the biggest concerns an LGBTQ+ divorcee will probably have is whether they will be treated fairly by the legal system. Especially for an LGBTQ+ individual divorcing a cisgender and heterosexual individual, the fear that you will be treated differently because of your sexual orientation or gender identity is hard to shake. Legally, sexuality and gender cannot be considered in divorce and custody cases, but sadly that does not mean that there is no discrimination in the legal system.

Bias:  Ultimately, the law is interpreted by judges, judges that have their own biases. 

  • Which judge you come before can have a huge impact on the outcome of your case, as some judges may come into the case with implicit biases about LGBTQ+ individuals.
  • If a judge does discriminate against you for your sexuality or gender identity, you can appeal the decision, but there is no guarantee that appeal will be decided in your favor either.  Judges have a tremendous amount of discretion in family law cases.
  • What judge or judges you come before is not something you have any control over in litigation.

Unintended Consequences:  Additionally, while sexuality is not considered in a case, sexual actions during a marriage can be financially disastrous. 

  • Adultery is a crime in Virginia and can impact custody, division of assets, and access to alimony. If for example, a woman married to a heterosexual man realizes her sexuality and begins an extramarital affair with a woman, that can be considered by a judge.
  • This would not be considered discriminatory under Virginia law, so it is something to be considered for LGBTQ+ individuals leaving a heterosexual spouse, especially if that spouse is not accepting.

Special Considerations: Any LGBTQ+ individual contemplating divorce should ensure that their lawyer understands how these issues will impact their case. 

  • An experienced lawyer that has worked with LGBTQ+ individuals before can make all the difference in your case. They can help guide you through the nuances that may arise during your proceedings and can help you prepare for an issues that may come up.
  • But even with a qualified lawyer, in court the final verdict is up to the judge, which can leave you stuck with a biased decision.

Important Takeaways

  • While the Courts do not allow outright discrimination against LGBTQ+ divorcees, implicit biases can show themselves in a judge’s decision and an attorney must be prepared to handle these biases and appropriately advise their clients.
  • Before choosing an attorney, take the time to ensure that they understand the unique issues that a LGBTQ+ divorcee may face during the process.
  • As laws and precedents continue changing, you want a lawyer that knows how to adjust to these changes and is flexible. A lawyer who is used to doing things the way they have always been done for the sake of tradition will not be able to help you navigate the legal landscape and support your family. 

The Geller Law Group has expert litigators available to help you navigate your divorce. Please reach out to schedule a consultation.

Alice Ahearn
Alice AhearnPartner
OFFICE: 703-687-6188 ext. 118
DIRECT: 703-982-6926

Cassidy Stoneback

Cassidy StonebackLGBTQ+ Outreach Coordinator
OFFICE: 703-687-6188 ext. 149
DIRECT: 571-489-6763

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