Are You Sure You’re Married? A Lesson Learned in Court of Appeals


Are you sure you’re married? How could you not know if you’re married?

Excellent question. I’ll tell you how:

In the recent Court of Appeals of Virginia case MacDougall v. Levick/Levick v. MacDougall, a man and woman (notice how they aren’t referred to as husband and wife) had a marriage ceremony performed in Virginia by an officiant licensed by the Commonwealth. However, they did so prior to obtaining a marriage license. According to the trial court and the Court of Appeals, this made all the difference in the world. Despite the parties obtaining their marriage license 16 days after their wedding ceremony, living together for over 8 years, entering into a marital agreement to deal with their divorce or separation should it occur, and doing all other things to hold themselves out as husband and wife; not to mention sincerely believing they were married, the Virginia Court of Appeals determined they were not.

The “wife” filed for divorce in 2011. During the course of this, the parties entered into a marital agreement, pursuant to which “husband” paid “wife” support, among other things, in the amount of $12,500 per month. “Husband” also paid “wife,” pursuant to court order, almost $300,000 in attorney’s fees. Approximately 1 year after filing for divorce, “husband” argued that the parties were not lawfully married due to their ceremony being performed prior to obtaining their marriage license, and because of this a great deal of relief, such as spousal support and equitable distribution of property, was no longer available. The trial court ruled “husband” was right, and the ruling was affirmed by the Court of Appeals.

The Court of Appeals ruled that no matter the facts and circumstances to the contrary, the statutory scheme in Virginia is mandatory. Therefore, if you do not obtain a marriage license in Virginia prior to your marriage ceremony, you’re not married.

What about common law marriage?

In general, Virginia does not recognize common law marriage. As with many things in the law, there are exceptions to that rule, but those exceptions are very narrow, and beyond the scope of this writing.

So Ms. MacDougall and Mr. Levick were not married, in any fashion, in the eyes of the law in Virginia.

What happens to the payments made during litigation and their property?

The answer is essentially nothing. The Court ruled that the payments made by Mr. Levick to Ms. MacDougall pursuant to their “marital agreement” during litigation are not to be paid back to him. As there are no marital property rights to be determined, everything is essentially determined by title with the potential for civil and equitable causes of action to be handled in a brand new lawsuit or lawsuits, if at all.

This case could still be appealed to the Supreme Court of Virginia, but until that happens, this is the status of the law in the Commonwealth.

“Are you sure you’re married?” This is not a question often asked by a family law attorney during an initial consult with a new client. If you have any doubts about your marital status, make sure to raise them as early as possible with your attorney – if possible, in the initial consultation.

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