Virginia Divorce: The Marriage that Wasn’t – Update!

“They’re baaaack…” – Poltergeist II: The Other Side, 1986

More than two years ago, we told you about the case of MacDougall v. Levick (Case No. CL-2011-4071).  As you may recall, the parties in that case, after believing themselves to be married for about nine years, were told by the Circuit Court of Fairfax County that they couldn’t get divorced because they were never married to begin with.  After more than two years’ worth of additional litigation and appeals (time flies when you’re having fun!) the Court of Appeals of Virginia issued its final decision in this case.  It is a 35 page opinion covering a whole host of issues, but the core question – were these folks married or not? – went the same way as the Circuit Court.

One of the decisions that varied from the Circuit Court’s ruling was the Court of Appeals’ determination that the parties’ marriage was voidable rather than void ab initio.  In English, the question boils down to “today we’re deciding that this marriage is void” versus “it’s as if this marriage never existed in the first place.”  If you’re rolling your eyes about lawyers spending lots of time and money arguing over how a particular strand of hair should be split, we understand.

But this could have had a big impact on the parties’ rights.  Ms. MacDougall argued that if the marriage was merely voidable, then she’s still entitled to spousal support and division of assets because she was married up until the point when the court deemed the marriage void.  Mr. Levick argued that if the marriage was void ab initio, then she’s not entitled to any of that because there was never a marriage to begin with.  Interestingly, after about six pages of discussion the Court ruled that this marriage was voidable, not void ab initio.  Good day for Ms. MacDougall, right?  Nope.  Even though it’s voidable, the Court says the marriage is voided back to its formation so…you guessed it – it’s as if this marriage never existed in the first place.

If that sounds like the Court of Appeals tried to have its cake and eat it too, we agree.  Does any of this impact the vast majority of you?  Probably not.  But if you’re facing a divorce, before going down that difficult and often expensive road, it certainly doesn’t hurt to check whether you’re actually married.  If you need help with that, please feel free to contact us at 703-359-0088 or