Archive | June 2013

Quick Analysis of Today’s DOMA and Proposition 8 Rulings


Pro-marriage equality advocates gather at the U.S. Supreme Court. Photo by author.

Pro-marriage equality advocates gather at the U.S. Supreme Court. Photo by author.

This morning, the Supreme Court struck down provisions of the 1996 Defense of Marriage Act (DOMA) as unconstitutional.  In a 5-4 opinion, Associate Justice Anthony M. Kennedy, writing for the majority, states that “DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.”  In the other marriage equality case, also a 5-4 decision (Chief Justice John G. Roberts writing for the majority), the Court ruled that the petitioners in the California Proposition 8 case did not have standing to appeal, which means that the trial court’s decision invalidating Proposition 8 stands and California can resume recognition of same-sex marriages.

Q: Who does the DOMA decision affect directly?

A: Everyone in the country who is in a legal same-sex marriage

The main purpose of DOMA was to prevent the federal government from recognizing same-sex marriages that several states have deemed legal.  This delegitimatization prevented same-sex spouses from enjoying over 1,000 benefits under federal law that opposite-sex couples get automatically upon legal marriage.  With DOMA’s demise, legally married same-sex couples will soon have rights to Social Security survivorship, tax status, inheritance, and many other benefits listed in the U.S. Tax Code and other federal laws.

Q: Does the DOMA ruling mean that states where same-sex marriages are illegal must recognize gay unions?

A: No. 

The Supreme Court did not give state same-sex marriage statutes “full faith and credit,” which means that the 38 states that do not already recognize same-sex unions don’t have to start doing so.  The effect of the ruling is that the Court leaves the question of marriage to the individual states.  This is in contrast to the 1967 Loving v. Virginia case, where the Court ruled that laws banning interracial marriages were unconstitutional nationwide.

Q: Who does the Proposition 8 decision affect directly?

A: Only residents of California.

The Court did not rule on the merits of the case, meaning that it did not discuss whether same-sex marriages should or should not be recognized on the state level.  In plain English, the Court dismissed the case on a technicality.

Q: What is “standing?”

A: Standing means the ability to bring a suit before a court. 

Proposition 8 (page 49 in this 2008 voter’s guide)was a referendum passed in 2008 that forced California to stop performing gay marriages.  The law was challenged and repealed at the trial level, but on appeal state officials declined to defend the statute.  An interest group called ProtectMarriage.com, which led the initiative to get Proposition 8 on the ballot, filed the appeal in place of the State of California.  The Court ruled that this group did not suffer “personal and tangible harm” and thus could not bring an appeal, and therefore returned the case to the trial court, whose ruling striking down Proposition 8 would immediately become effective.

Cases referenced:

U.S. v. Windsor, 12-307 (June 26, 2013)

Perry v. Hollingsworth, 12-144 (June 26, 2013)

Loving v. Virginia, 388 U.S. 1 (1967)

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

Now taking traffic cases!


"speeding" by author

“speeding” by author

The Law Office of Philip R. Yabut, PLLC, is pleased to announce that we will now accept traffic cases.  Fees will be determined on a case-by-case basis.  Please contact us at (571) 393-1236 or by e-mail at pyabut01@gmail.com for a free initial consultation.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

“Partial” Divorce in Virginia: “Bed and Board”


"birds on a vane" by author

“birds on a vane” by author

In a previous post, I wrote that there is no such status as “legally separated” in Virginia.  While this is true, you need to know that there is an intermediate status known as divorce a mensa et thoro, or “divorce from bed and board.”

There are two grounds for divorce from bed and board: cruelty and reasonable apprehension of bodily hurt, or willful desertion or abandonment.  The effect of such a decree is separation of spouses and their respective property, but unlike absolute divorce neither party is allowed to remarry (Va. Code § 20-116). 

The parties may seek an absolute divorce one year after date of separation.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

Have you done a Living Will yet?


"going away" by author

“going away” by author

Earlier, I wrote about Five Reasons to Get a Living Will.  It’s vacation season, and while traveling is fun and relaxing, you should not leave home unprepared for the unthinkable worst case scenario.   If you would like to create a legally enforceable living will, you can contact me directly or do it yourself quickly and easily on my online services page.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

Proving Intent to Divorce: Your Corroborating Witness


"Wood Duck, P.I." by author

“Wood Duck, P.I.” by author

In the age of no-fault divorce, it is relatively easy to end a marriage if both sides consent and settle their issues before filing.  But even if both spouses really, really, really want to split up,  someone besides the separating parties must vouch for their intent to divorce under oath and in open court (note: Virginia allows for divorce by affidavit under certain circumstances; DC does not at this time).

Your corroborating witness can be anyone you know — a relative, friend, colleague.  The court requires the witness to answer a series of questions demonstrating his/her personal knowledge of the facts and circumstances surrounding the plaintiff’s separation from his/her spouse and whether the couple has remained separate and apart throughout the required time prior to filing the divorce action.

Virginia’s special statewide rules allow both the plaintiff and corroborating witness to answer their questions by written notarized affidavit if  there are no outstanding issues to be determined by a judge.

The following are sample witness questions taken from a divorce guide provided by the Fairfax County Circuit Court:

1. State your full name and address please?
2. Are you acquainted with the Plaintiff in this action?
3. What is your relationship?
4. How long have you known him/her?
5. Does the Plaintiff currently reside at (ADDRESS)?
6. For at least six months prior to filing the Complaint for Divorce, please state all addresses where the Plaintiff has resided. (Note: if it is the other party upon whom jurisdiction is grounded, then ask this question regarding the residency and domicile of the other party.)
7. So for at least six months prior to the filing of the Complaint for Divorce on (DATE), was he/she a bona fide resident and domiciliary of the Commonwealth of Virginia? (Note: if it is the other party upon whom jurisdiction is grounded, then ask this question regarding the residency and domicile of the other party.)
8. Is the Plaintiff currently married to (spouse’s name)?
9. Have you met the Defendant? Would you know him/her by sight?
10. Are both Mr. and Mrs. (NAME) over the age of eighteen?
11. Have either of them been active duty members of the Armed Forces of the United States or its allies at any time during the pendency of this suit?
12. Is it your understanding that they were married on (Date) in (Place)?
13. Were there any children born or adopted of their marriage? (IF YES, ASK NAMES AND AGES)
14. Did they separate on or about (Date)?
15. At the time of the separation, was it the intent of at least one of them that it would be a permanent separation that would ultimately lead to a divorce?
16. Has that intent continued on the part of at least one of them up until the present date?
17. How did you become aware of the separation?
18. Have you had an opportunity to visit in the Plaintiff’s or Defendant’s home since (Date of Separation)?
19. How often have you visited with the Plaintiff/Defendant in his/her home?
20. In any of your visits to his/her home, have you ever seen anything which would indicate to you that his/her spouse was continuing to live there after (Date of Separation)?
21. How frequently do you speak with the Plaintiff/Defendant either by telephone or in person?
22. In any of your conversations with him/her, have you ever heard anything which would indicate to you that after the (Date of Separation), he/she had reconciled with his wife/her husband and resumed living together with her/him?
23. Do you believe you have a close enough relationship with the Plaintiff/Defendant that if he/she had reconciled with his wife/her husband and resumed living with her/him, that you would have been aware of that fact?
24. So, to your knowledge, have they lived separate and apart without any cohabitation and without interruption from (Date of Separation) up to the present date?
25. Do you believe there is any hope or probability of a reconciliation between them?

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com