Recognizing gay marriages/civil unions - a hypothetical

[Two Thumbs]

I live in NoVA. Virginia has pretty liberal (in the non-political definition) gun laws. I'm pretty new to VA (not to the DC metro area, though). After living in fascist states on gun laws prior to this, I am amazed at the gun laws here.

Sorry, I was just using that as an example of how laws and Constitutions don't always seem to jive.

We have the right to bear arms. That means I should be able to buy a tank if I want to. I can't recall where, but I think it was Franklin that explained that we are supposed to have access to the same weapons our military does.
....

Ah, I see. Good point.

....

I suppose this could be used as fuel to get VA to recognise gay unions/wedding certs. I doubt it will occur for a long long time, nor necessarily should it.


I was stationed at the Navy base in Norfolk. Nice area.

As I am neither gay nor lesbian, the only interest I had in same-sex marriage was equality for all humans. But, even more fundamentally, I believe that the government (state and federal) shouldn't be involved in the business of marriage at all. That's a church/synagogue/temple/whatever thing. The contract aspect of it is only where the state should have any say, IMO. But, I never really had a dog in that fight and because I didn't, we found a way where I do have a dog in that fight.

But, as states still seem to want to be involved in religious ceremonies and when that involvement actually has the potential to materially affect me and those close to me, I take a keen interest in it.

I get that.

The protection of marrage act is unconstitutional, imo.

However states have no such restrictions. Since it is not specifically covered in the Constitution each state is free to pass or not pass laws reguarding it.

The only way to avoid federal law is to migrate out of the country. Who wants to do that? Where would you go? Canada? pfft, the cold ass north wind comes out of Canada.

If you don't like a VA state law, pfft move. If it's that important, take your tax revenue and go to a place you prefer.

If people did that instead of trying to force change at the fed level, we would be a much happier country.

 

[Si modo]

Sorry, I was just using that as an example of how laws and Constitutions don't always seem to jive.

We have the right to bear arms. That means I should be able to buy a tank if I want to. I can't recall where, but I think it was Franklin that explained that we are supposed to have access to the same weapons our military does.
....

Ah, I see. Good point.

....

I suppose this could be used as fuel to get VA to recognise gay unions/wedding certs. I doubt it will occur for a long long time, nor necessarily should it.


I was stationed at the Navy base in Norfolk. Nice area.

As I am neither gay nor lesbian, the only interest I had in same-sex marriage was equality for all humans. But, even more fundamentally, I believe that the government (state and federal) shouldn't be involved in the business of marriage at all. That's a church/synagogue/temple/whatever thing. The contract aspect of it is only where the state should have any say, IMO. But, I never really had a dog in that fight and because I didn't, we found a way where I do have a dog in that fight.

But, as states still seem to want to be involved in religious ceremonies and when that involvement actually has the potential to materially affect me and those close to me, I take a keen interest in it.

I get that.

The protection of marrage act is unconstitutional, imo.

However states have no such restrictions. Since it is not specifically covered in the Constitution each state is free to pass or not pass laws reguarding it.

The only way to avoid federal law is to migrate out of the country. Who wants to do that? Where would you go? Canada? pfft, the cold ass north wind comes out of Canada.

If you don't like a VA state law, pfft move. If it's that important, take your tax revenue and go to a place you prefer.

If people did that instead of trying to force change at the fed level, we would be a much happier country.

Yup. That would make sense, but in this case, we assume the divorce took place in VA so VA laws apply to what is ordered in spousal support. I doubt a parent would want to leave his/her children from that failed marriage, either, or at least put that much distance between him and them.

But, on a bigger note, I don't even think states should be involved in any religious ceremony. Seems to be contradictory on its face to the US Constitution, which trumps (theoretically) states' constitutions.

 

[Two Thumbs]

Ah, I see. Good point.




As I am neither gay nor lesbian, the only interest I had in same-sex marriage was equality for all humans. But, even more fundamentally, I believe that the government (state and federal) shouldn't be involved in the business of marriage at all. That's a church/synagogue/temple/whatever thing. The contract aspect of it is only where the state should have any say, IMO. But, I never really had a dog in that fight and because I didn't, we found a way where I do have a dog in that fight.

But, as states still seem to want to be involved in religious ceremonies and when that involvement actually has the potential to materially affect me and those close to me, I take a keen interest in it.

I get that.

The protection of marrage act is unconstitutional, imo.

However states have no such restrictions. Since it is not specifically covered in the Constitution each state is free to pass or not pass laws reguarding it.

The only way to avoid federal law is to migrate out of the country. Who wants to do that? Where would you go? Canada? pfft, the cold ass north wind comes out of Canada.

If you don't like a VA state law, pfft move. If it's that important, take your tax revenue and go to a place you prefer.

If people did that instead of trying to force change at the fed level, we would be a much happier country.

Yup. That would make sense, but in this case, we assume the divorce took place in VA so VA laws apply to what is ordered in spousal support. I doubt a parent would want to leave his/her children from that failed marriage, either, or at least put that much distance between him and them.

But, on a bigger note, I don't even think states should be involved in any religious ceremony. Seems to be contradictory on its face to the US Constitution, which trumps (theoretically) states' constitutions.

Anything not covered in the Constitution falls to the States and thier constitutions.

That's actually in The Constitution. not verbatum of course.

It's why we have states and a one page Constitution. It makes it easy to live anywhere and allows like minded people to restrict what goes on inside thier state.

People that are gay will avoid Va, people that want to avoid gays will go to VA.

We basically agree with subtle differences on states rights.

 

[Si modo]

I get that.

The protection of marrage act is unconstitutional, imo.

However states have no such restrictions. Since it is not specifically covered in the Constitution each state is free to pass or not pass laws reguarding it.

The only way to avoid federal law is to migrate out of the country. Who wants to do that? Where would you go? Canada? pfft, the cold ass north wind comes out of Canada.

If you don't like a VA state law, pfft move. If it's that important, take your tax revenue and go to a place you prefer.

If people did that instead of trying to force change at the fed level, we would be a much happier country.

Yup. That would make sense, but in this case, we assume the divorce took place in VA so VA laws apply to what is ordered in spousal support. I doubt a parent would want to leave his/her children from that failed marriage, either, or at least put that much distance between him and them.

But, on a bigger note, I don't even think states should be involved in any religious ceremony. Seems to be contradictory on its face to the US Constitution, which trumps (theoretically) states' constitutions.

Anything not covered in the Constitution falls to the States and thier constitutions.

That's actually in The Constitution. not verbatum of course.

It's why we have states and a one page Constitution. It makes it easy to live anywhere and allows like minded people to restrict what goes on inside thier state.

People that are gay will avoid Va, people that want to avoid gays will go to VA.

We basically agree with subtle differences on states rights.

Yes, we do. Just nuanced differences, likely.

What I never knew was that there was an amendment to the VA Constitution that basically says, 'we will not recognize something that everyone knows exists - same sex relationships'. That just bowls me over in its uselessness - it won't stop those who are homosexual from falling in love. It may, as you say, cause some to move to a different state, but I doubt the majority would. Not only won't it stop same sex relationships, it seems there are unintended consequences.

Yes, very civil debate and I cannot rep you until I spread more rep around.

 

[Si modo]

The statute in regards to changing maintenance and support for a spouse does not specify that the relationship must be between a man and a woman.

Yes. That's very true. It just says 'persons'. Then there is the VA Constitution. Taking into consideration the Code and the Commonwealth's Constitution, it doesn't seem to clear what would be the correct ruling based on law.

I disagree I think it's very clear. It doesn't say the relationship must be between a man and a woman it simply states the relationship must be analogous to a marriage. I would argue the scenario you put forth is comparable to a marriage with the exception to the gender of the people involved.

[Emphasis added] I think you may have just pinpointed the strongest fulcrum of a winning argument, there.

 

[AVG-JOE]

Another interesting aspect of this is that it provides an example of how gay marriage rights affects us all in one way or another. Here is a red-blooded American heterosexual man who must pay every month (potentially) because folks and laws are too afraid to even recognize that same sex couples exist.

Apparently no man (woman) is an island. I hope folks remember that as the next political season gets underway.

We REALLY need to find ways to work together and remember that every law and rule affects someone negatively.

 

[AVG-JOE]

I'd like to get some input on something a friend of mine and I were discussing a while ago.

First, in the Virginia Constitution, it explicitly states that the Commonwealth will not recognize any gay marriage or gay union of any sort. The exact wording of the amendment is:

"Only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage."

So what if a man is paying spousal support for his ex-wife but since the divorce, the ex-wife has realized that she is a lesbian. So, she is living with her lesbian lover, they have 'had a child together' (the other lesbian was inseminated, for example), she is the stay-at-home 'mom' and the other mother (the biological mother) is the bread winner. Seems like a fairly normal situation for a divorcee, but for the same sex aspect.

The husband decides to ask the court to discontinue his requirement to pay spousal support. It seems that VA Code says that if the ex spouse enters into a cohabitating relationship (living together for some time, sharing of financial burdens, romantic attraction/affection for each other exist - IOW, they are living together for reasons more than just convenience like roommates would).

Here is the Virginia Code about that:

"§ 20-109. Changing maintenance and support for a spouse; effect of stipulations as to maintenance and support for a spouse; cessation upon cohabitation, remarriage or death.

A. Upon petition of either party the court may increase, decrease, or terminate the amount or duration of any spousal support and maintenance that may thereafter accrue, whether previously or hereafter awarded, as the circumstances may make proper. Upon order of the court based upon clear and convincing evidence that the spouse receiving support has been habitually cohabiting with another person in a relationship analogous to a marriage for one year or more commencing on or after July 1, 1997, the court shall terminate spousal support and maintenance unless (i) otherwise provided by stipulation or contract or (ii) the spouse receiving support proves by a preponderance of the evidence that termination of such support would be unconscionable. The provisions of this subsection shall apply to all orders and decrees for spousal support, regardless of the date of the suit for initial setting of support, the date of entry of any such order or decree, or the date of any petition for modification of support.

...."

What should the court do? The state constitution says the court can't recognize the other relationship because it's not between a man and a woman, but the code doesn't specify that cohabitants be a man and woman (code specifically says 'person' cohabitating).

It doesn't seem too obvious what could be done. I find it an interesting problem.

Seems cut and dry to me.

the support is lowered or cut.

It would be like the spouse moved back home with mom and dad and no longer needs the same level of support.

Alimony is based on the needs of the spouse, if the need drops for any reason, the support should drop.

That may be true, but the squeaky wheels of alimony cases are usually based on the ability of one of the ex-spouses to pay and have nothing to do with needs being met.

 

[AVG-JOE]

As I am neither gay nor lesbian, the only interest I had in same-sex marriage was equality for all humans. But, even more fundamentally, I believe that the government (state and federal) shouldn't be involved in the business of marriage at all. That's a church/synagogue/temple/whatever thing. The contract aspect of it is only where the state should have any say, IMO. But, I never really had a dog in that fight and because I didn't, we found a way where I do have a dog in that fight.

But, as states still seem to want to be involved in religious ceremonies and when that involvement actually has the potential to materially affect me and those close to me, I take a keen interest in it.

This brings us back to why government has to define marriage in the first place.

Would you want to see a woman who chose to stay at home with kids while her husband worked eating Alpo in retirement because her spouse traded her in on a younger model when the kids were grown? Right now the law says she is entitled to benefits based on his work record, providing there is 10 years of proven marriage.

I honestly can't think of another reason for the government to define marriage, other than the income tax code, which in my humble opinion is bullshit anyway.

 

[George Costanza]

That may be true, but the squeaky wheels of alimony cases are usually based on the ability of one of the ex-spouses to pay and have nothing to do with needs being met.

Wrong. Ability to pay and need on the part of the receiving spouse are both factors that are considered equally.

 

[AVG-JOE]

If you don't like a VA state law, pfft move. If it's that important, take your tax revenue and go to a place you prefer.

If people did that instead of trying to force change at the fed level, we would be a much happier country.

And think of the mouth watering variety of business and social environments we'd build if only the Gentleman from the Great State of Rhode Island (et al.) truly did not care what those whackos out in California (et al.) smoked in their hot tubs!

Let the States decide.

 

[AVG-JOE]

That may be true, but the squeaky wheels of alimony cases are usually based on the ability of one of the ex-spouses to pay and have nothing to do with needs being met.

Wrong. Ability to pay and need on the part of the receiving spouse are both factors that are considered equally.

Like I said, the squeaky wheel cases, the ones that get press, tend to be the ones where one of the parties gets alimony in the thousands per month. Based on ability to pay and not much else. It also depends on what state you find yourself getting the big D in.

Florida is a roll of the judicial dice: Alimony | Calculations for Alimony Payments | Alimony Calculator | Modification of Permanent Alimony

Alimony in Florida is one of the more unpredictable areas of family law. Unlike child support, there is not a guarantee of alimony, nor a set amount if alimony is granted by the court. Calculation of alimony payments is done by examining incomes and available assets. You can have the same set of facts and get 10 different decisions in 10 different courts.

 

[Si modo]

So, apparently in June 2009, the Virginia Court of Appeals ruled that an ex-wife involved in a lesbian relationship analogous to marriage cannot continue to con her ex-husband out of spousal support payments simply because the Virginia Constitution does not recognize gay marriage.

Stroud v Stroud

I think the court made a wise decision.

 

[syrenn]

I'd like to get some input on something a friend of mine and I were discussing a while ago.

First, in the Virginia Constitution, it explicitly states that the Commonwealth will not recognize any gay marriage or gay union of any sort. The exact wording of the amendment is:

"Only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage."

So what if a man is paying spousal support for his ex-wife but since the divorce, the ex-wife has realized that she is a lesbian. So, she is living with her lesbian lover, they have 'had a child together' (the other lesbian was inseminated, for example), she is the stay-at-home 'mom' and the other mother (the biological mother) is the bread winner. Seems like a fairly normal situation for a divorcee, but for the same sex aspect.

The husband decides to ask the court to discontinue his requirement to pay spousal support. It seems that VA Code says that if the ex spouse enters into a cohabitating relationship (living together for some time, sharing of financial burdens, romantic attraction/affection for each other exist - IOW, they are living together for reasons more than just convenience like roommates would).

Here is the Virginia Code about that:

"§ 20-109. Changing maintenance and support for a spouse; effect of stipulations as to maintenance and support for a spouse; cessation upon cohabitation, remarriage or death.

A. Upon petition of either party the court may increase, decrease, or terminate the amount or duration of any spousal support and maintenance that may thereafter accrue, whether previously or hereafter awarded, as the circumstances may make proper. Upon order of the court based upon clear and convincing evidence that the spouse receiving support has been habitually cohabiting with another person in a relationship analogous to a marriage for one year or more commencing on or after July 1, 1997, the court shall terminate spousal support and maintenance unless (i) otherwise provided by stipulation or contract or (ii) the spouse receiving support proves by a preponderance of the evidence that termination of such support would be unconscionable. The provisions of this subsection shall apply to all orders and decrees for spousal support, regardless of the date of the suit for initial setting of support, the date of entry of any such order or decree, or the date of any petition for modification of support.

...."

What should the court do? The state constitution says the court can't recognize the other relationship because it's not between a man and a woman, but the code doesn't specify that cohabitants be a man and woman (code specifically says 'person' cohabitating).

It doesn't seem too obvious what could be done. I find it an interesting problem.

I know... old thread. But considering I live in CA.... gay rights central.... this is interesting.

 

[Si modo]

I'd like to get some input on something a friend of mine and I were discussing a while ago.

First, in the Virginia Constitution, it explicitly states that the Commonwealth will not recognize any gay marriage or gay union of any sort. The exact wording of the amendment is:

"Only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage."

So what if a man is paying spousal support for his ex-wife but since the divorce, the ex-wife has realized that she is a lesbian. So, she is living with her lesbian lover, they have 'had a child together' (the other lesbian was inseminated, for example), she is the stay-at-home 'mom' and the other mother (the biological mother) is the bread winner. Seems like a fairly normal situation for a divorcee, but for the same sex aspect.

The husband decides to ask the court to discontinue his requirement to pay spousal support. It seems that VA Code says that if the ex spouse enters into a cohabitating relationship (living together for some time, sharing of financial burdens, romantic attraction/affection for each other exist - IOW, they are living together for reasons more than just convenience like roommates would).

Here is the Virginia Code about that:

"§ 20-109. Changing maintenance and support for a spouse; effect of stipulations as to maintenance and support for a spouse; cessation upon cohabitation, remarriage or death.

A. Upon petition of either party the court may increase, decrease, or terminate the amount or duration of any spousal support and maintenance that may thereafter accrue, whether previously or hereafter awarded, as the circumstances may make proper. Upon order of the court based upon clear and convincing evidence that the spouse receiving support has been habitually cohabiting with another person in a relationship analogous to a marriage for one year or more commencing on or after July 1, 1997, the court shall terminate spousal support and maintenance unless (i) otherwise provided by stipulation or contract or (ii) the spouse receiving support proves by a preponderance of the evidence that termination of such support would be unconscionable. The provisions of this subsection shall apply to all orders and decrees for spousal support, regardless of the date of the suit for initial setting of support, the date of entry of any such order or decree, or the date of any petition for modification of support.

...."

What should the court do? The state constitution says the court can't recognize the other relationship because it's not between a man and a woman, but the code doesn't specify that cohabitants be a man and woman (code specifically says 'person' cohabitating).

It doesn't seem too obvious what could be done. I find it an interesting problem.

I know... old thread. But considering I live in CA.... gay rights central.... this is interesting.

It IS interesting. So a lesbian thinks she can enter into a marriage-like relationship and still milk the ex-husband out of spousal support because the VA Constitution says they won't grant legal status to same-sex marriages and/or civil unions??????

Not.

In the Stroud case posted above, the lesbians thought exactly that. But the court of appeals ruled that their property settlement agreement (a contract) explicitly said she can't cohabit with another PERSON (no specification other than 'person') in a marriage-like relationship and STILL get spousal support.

Spousal support terminates when someone cohabits like that - no longer can ex-wives cheat their ex-husbands out of spousal support by not marrying.

And, if the ex is now a lesbian, and considering the VA constitution, she STILL can't cheat her ex-husband if she has a property settlement agreement.

Nice.

And, the way the court of appeals got around the VA constitution is that they said they are NOT granting any legal status to the lesbian relationship; rather they are JUST looking at spousal support.

And, now VA has a second case about that - lesbians thinking they can cheat the ex-husband while they play house.

Nope. They can't.