Getting a Marriage License in Virginia
A marriage license is a document that authorizes two people to marry each other. In Virginia, the requirements for obtaining a marriage license include: Individuals must be at least 18 years of age. A person under the age of 18 does not have the capacity to enter into a marriage. A parent or guardian must consent to a marriage between a minor and an adult. Additionally, a Court must give the parties permission to enter into a marriage.
The parties must be competent and able to enter into a valid contract. That means that each person must be of sound mind, able to enter into an agreement and understand both the obligations and benefits of entering into a marriage. Of course, if a person is disabled, they will need to have a guardian appointed by a Court to consent to the marriage on their behalf.
Laws vary from state to state about having to wait an established period of time before issuing a marriage license. For example, some states require up to a 5-day waiting period while in others you can walk into the courthouse and receive your marriage license. In Virginia, however, there is no waiting period . With the exception of individuals who are under the age of 18 which requires Court approval, as long as all the appropriate paperwork and fees are provided for the issuance of the marriage license, you will receive your license immediately. However, it is always best to call ahead even though there is no waiting period to ensure that you have all necessary paperwork and identification to avoid delays. To file for a marriage license, you need to go to the Circuit Court in the county or city in which you reside. If you are not from Virginia, you will apply in the Circuit Court in the county where you plan to marry. The following documents and information is generally required to obtain a marriage license: Birth certificates are not a requirement in Virginia. However, if you do not have your Birth certificate available, you will need to know what your height and birth date. Virginia is a willing participant in the Internet marriage license registry created by the National Association of Secretaries of State and the National Association State Registrars of Vital Statistics. You can get birth records through the Virginia Department of Vital Records. Generally, Records are computerized, but they could take up to 8 weeks to be processed.
The Marriage Ceremony in Virginia
The roles of the parties and the officiant in marriage ceremony process are set forth in Virginia Code sections 20-24 through 20-27. The parties must produce and present to the officiant the appropriate license, and the officiant must satisfy himself or herself that they are currently married under the authority having jurisdiction to do so. However, prior to the performance of the ceremony, the marriage must be licensed. In the clerks’ offices in Virginia, there is no waiting period if both parties are present. If one or both of the parties is absent, you must wait at least 24 hours before obtaining the license unless the other party lives in another state, in which case it can be obtained immediately. If the parties are illegally married, in violation of the laws of their State, then the officiant is not limited to marriage within the State for a period of 90 days.
Officiants include ministers, priests, judges, and other religious and civil officials, as well as any adults requested and consented to by the parties who are authorized by the laws of another state or country. Secret marriage ceremonies performed on behalf of the state by an official of a recognized church or religious denomination are permissible without a license or consent, provided that the particular religious entity is authorized to perform marriage ceremonies in the states where its tenets and belief system authorizes such marriages.
Premarital Agreements: What You Should Know
Prior to entering into a marriage, it can be in the best interest of both adults to lay out precisely how property, assets and other fiduciary interests will be divided in the unfortunate case that the marriage does not go as planned. An increasingly high divorce rate across the country has led many individuals to seek a legal agreement long before even saying "I do."
Known as a premarital agreement (in Virginia, this is also referred to as a prenuptial agreement, antenuptial agreement or a premarital contract), such an agreement is legally enforceable so long as it follows the format and language set forth by law.
With the assistance of an attorney, both future spouses will disclose their financial situations to one another – including all assets, income sources and all expenses – and enter into a legally binding document that describes the couple’s eventual asset and property distribution in the event of separation or divorce.
In Virginia, premarital agreements are legally enforceable under Virginia Code § 20-147. For the agreement to be legally binding, it must generally be in writing and signed by both future spouses before marriage. Additionally, Virginia law specifies that the agreement must be enforceable in the event of legal separation, divorce, maintenance or property right. The agreement can only be found invalid if it is determined that a party was not able to make decisions, due to mental incapacity at the time of signing the agreement, only in the event that the party to be charged as the person unable to make decisions had no income, bank accounts, stocks, bonds, etc. between 180 days prior to beginning the contract negotiations through the actual signing of the agreement. The law also specifies that these contracts are intended to be primarily enforced by the court, which will fairly apply the original intent of the parties during contract negotiations to the post-marital context.
Same-Sex Marriage in Virginia
Since 2014, same-sex couples have enjoyed full legal recognition of their marriages in Virginia. This transformative change was precipitated by the 2013 U.S. Supreme Court decision in United States v. Windsor, in which the court struck down key provisions of the Defense of Marriage Act (DOMA). This ruling invalidated federal provisions that denied same-sex couples access to a number of key benefits, including spousal rights under the federal Defense of Marriage Act, the estate tax exemption, the ability to sponsor their spouse for a green card and Social Security benefits.
Historically, same-sex marriage was illegal in Virginia. However, in February 2014, the U.S. Court of Appeals for the Fourth Circuit ruled in Bostic v. Rainey, that the state’s ban on same-sex marriage was unconstitutional. Since the Fourth Circuit covers a broad swath of the mid-Atlantic and South, including Virginia, West Virginia and North Carolina, the ruling set precedent in all of these states, leading to change in the law.
In June 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges, in favor of same-sex marriage nationwide. At the time of the ruling, same-sex couples were already allowed to marry in 37 states and the District of Columbia. The court majority found that it was "difficult to image that any significant percentage of the 40% of the population" who lived in the 13 states that did not allow same-sex marriage could fail to be affected by the ruling in terms of "stability and predictability."
Parents and as well as surviving spouses are permitted to file joint taxes or to transfer property without capital gains taxes. Surviving spouses are also entitled to automatic inheritance rights. The six-month anniversary of a spouse’s death marks the earliest date at which a surviving spouse can collect any benefits. Social Security survivor benefits and certain health insurance policies are subject to different time frames and other limitations.
Changing Your Last Name After Getting Married
Should you decide to change your name after marriage, there are a number of steps you need to take immediately after the ceremony. First, be aware that you may want to choose between a couple of different options. Keep in mind that the decision on this is not one you can go back and change. You must choose one of these options before you sign either the officiant’s form or a marriage license application.
Option 1: First, you can choose to change your name legally via a legal name change petition that will be submitted to the court. This will require you to file the petition, receive an order from the court, submit it to the Virginia Department of Vital Statistics, and then place ads in two newspapers. If you have a legitimate reason for your name change, this process will work fine. However, you may be forced to prove this legitimacy and it could take an amount of time for the process to complete. You would also need to pay a number of fees and make numerous requests through the courts. This method could take anywhere from a number of days to a year or so to finalize. The good news is that, if you choose to do this, you would be able to obtain a fresh beginning with a new identity. Your new name would be legally yours to use as you wish, and no one could point out that it is not your name.
Option 2: The other option is to change your name consistent with your spouse’s. Virginia’s law is clear that, in a Virginia marriage, the wife takes her husband’s last name. The husband does not automatically assume his wife’s name, and she cannot legally keep her own name . With that being said, unless you are changing your name on a marriage application, you will be able to change your name consistent with your spouse’s. This means that you would need to provide at a minimum a copy of your marriage license or order changing your name to the state Department of Vital Statistics as well as proof of your identity. Not everyone will have the same views as you on your desire to both choose your own name and pick your spouse’s name as your middle name. The state does allow you to establish this name in their records as long as you provide the documentation. However, remember that when you turn this form in, the Department of Vital Statistics gives you an entirely new identity.
With either option, you will be required to turn in all documents with your new name to the local Department of Vital Statistics as soon as possible. When doing so, you should receive an updated form with your new name on it. Keep in mind that you will not receive an actual certificate, but rather documentation that will prove you changed your name and the name associated with them.
As for some specific steps that you will need to take, whether you choose Option 1 or Option 2 above, at a minimum you will need to submit the following forms:
In addition to the above, you will also need to change your name on the following documents:
In addition, you should consider changing the name on your bank accounts, medical insurance, car insurance, and life insurance, as well as any credit cards or other pending bills. You should also change your photographs on important documents with DMV.
Common-Law Marriage: Does Virginia Recognize This?
"Common law marriage" has been a source of confusion in Virginia and throughout the United States in general. Potentially leading to this confusion is the notion that there is such a thing as a common law divorce. In fact, there is no such thing as a common law divorce, nor is there such a thing as a common law marriage. When two people marry, they are considered legally married; when they no longer want to be considered married, they are no longer married regardless of whether they have gone through a formal divorce process. As is the case with many legal issues, some terms are used as shorthand for more specific legal terminology.
While Virginia does not recognize common law marriage, there are some exceptions. For example, if a couple was considered a common law couple in another state and then moved to Virginia, the Commonwealth would recognize the marriage. The other scenario is when a couple entered into a common law marriage in Virginia before October 1, 2016. Virginia passed a bill which eliminated common law marriage in the Commonwealth effective on October 1, 2016. A couple who lives together before that date would have been considered common law but will not be after October 1, 2016.
A couple living together may be engaged to each other or may, technically speaking, be "committed." Regardless, Virginia does not recognize marriage without a formal ceremony between the couple in the presence of an officiant who is legally authorized by the state to marry people. Without that ceremony, there is nothing to which either party can point as evidence that they are in a committed relationship as recognized by the Commonwealth.
Should an unmarried couple have disputes about their property, they can look to a number of factors in determining their intent with regard to that property. Did they make any agreements, either written or implied? Do they each pay for certain aspects of the property (i.e., the taxes, insurance, repairs)? Have the made changes, additions, or subtractions to the property (either physical improvements to the land itself or by way of new purchases)? These are just a few of the things a court will look to should disputes arise between a cohabiting couple.
The prohibitions on common law marriage may seem antiquated to some people today, but that does not lessen the importance of these prohibitions. Cohabitations in which parties believe they are married but are not makes things much more complicated than a typical separation between married couples.
What Marriage Means Under Virginia Law
Virginia law confers certain rights and responsibilities on married persons that are not available to single persons. These legal implications may impact your decision to marry or modify your prenuptial agreement. From a high level, an individual requesting a divorce in Virginia must show a ground for divorce, and there is a fault (e.g., adultery) and no-fault (i.e., after one year of separation) basis for divorce. Virginia law provides that each party is responsible for paying the lawyer’s fees and costs of the divorce, and that each party keeps their own separate property if owned prior to marriage – unless it was given to them as a gift by the other spouse. There are exceptions, of course, and several rules apply to valuable items owned before the marriage.
There is no law in Virginia that divides property between married people. Often, there are many community (divided) and separate assets at the time of divorce. A spouse may also be responsible for debt, regardless of the name on the account. Virginia law includes some presumptions that apply when valuing real estate, personal property, and debts for the purposes of property division as well. Both parties may have a right to spousal support (Cannot be waived prior to the marriage.) or alimony (Can be waived prior to the marriage.), depending on the circumstances.
Virginia law also provides that your children have the right to share in your new spouse’s estate in the event of his/her death. While prenuptial agreements can protect you from some of these legal implications, Virginia law still governs the entirety of your marriage and the real implications of an asset or debt division at time of separation and divorce.
Divorce and Annulment in Virginia
As a divorce attorney in Virginia, let’s further examine the legal marriage requirements in the prior section. The legal requirements are necessary to determine whether you have a valid marriage in Virginia and the above requirements must be met for a marriage to be legally recognized in the Commonwealth of Virginia.
A selection of annulment laws and procedures are as follows:
A. Grounds for Annulment
There are grounds for void marriages and for voidable marriages.
- Marriage for which a contract would be void under the prohibitions of § 20-38.1 to § 20-38.8, or for a person who, at the time of the marriage, was then and there lawfully married, or a presumptively married person under § 20-38.6, with respect to the person with whom the marriage is made.
- Marriages between persons of the same sex are void if either person was not of legal age, the marriage was not solemnized with a license obtained in accordance with the laws of the Commonwealth, or one of the parties did not have capacity to consent to the marriage.
- A marriage is void if one of the parties lacked the capacity to consent to the marriage, except that a marriage is not rendered void only because of impotence .
- A marriage is voidable if a party to the marriage, at the time of the marriage, was under the legal age for consent under § 20-48, provided that the marriage may be affirmed by the party, with the exception of those voidable marriages based on lack of capacity to consent.
- A marriage is voidable if entered into based on the fraud of either party, but the marriage is voidable only if the marriage was entered into under circumstances in which the fraud would be likely to cause harm to the marital relationship.
- Subject to the provisions of §§ 20-89 and 20-91, a marriage is voidable if the parties have not lived together as husband and wife:
B. Legal Procedures for Annulment
Annulments are not heard by a jury and court decrees can only be granted by a circuit court. Further, the grounds for annulment are present when the parties enter the marriage. If a party does not meet the elements of the above-mentioned law, he or she can move to an annul an earlier decree of divorce. An annulment, pursuant to a circuit court decree, terminates the contract of marriage and returns the parties to the status of single individuals as though they were never legally married.