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Va. appellate court: Overnight stay won’t support common law marriage

RICHMOND, Va. — A “husband” whose nine-year marriage was negated because the couple’s Washington wedding was at odds with their Virginia paperwork cannot save the union by labeling it a common law marriage under D.C. law.

The Court of Appeals of Virginia ruled Aug. 14 that – despite all the trappings of marriage, including a shared home – Bartholomew and Eileen Porter were never husband-and-wife in the eyes of the law.

The decision raises questions about the validity of any Virginia-licensed marriage where the actual wedding took place elsewhere.

A three-judge appeals court panel affirmed the October ruling of Fairfax County Circuit Judge Randy I. Bellows.

Couple acted as husband and wife

Without question, the Porters believed they were married in 2006, and they acted on that belief until last year.

Bartholomew D.S. Porter was a Washington, D.C., resident when he made plans to marry Eileen, a Virginia resident. The wedding was to be in Washington, but the couple obtained a marriage license from Virginia.

The officiant, who was licensed in both Virginia and D.C., spotted the problem. After the ceremony before 30-to-40 friends and relatives, the officiant completed the license form, indicating, falsely, that the marriage took place in Arlington. He told the couple they would need to have another ceremony in Virginia to make it official. The Porters did not think a Virginia ceremony was necessary and skipped that step.

“In short, the parties believed that they were married,” Judge Rosemarie Annunziata wrote in the court’s opinion. They were presented to the guests as husband and wife. They shared a room that night at a Washington hotel. They later purchased a home in Virginia, titled to them as tenants by the entirety. They filed joint tax returns as a married couple.

The couple split in 2015. Mr. Porter filed for divorce in 2016.

Working on a property settlement agreement for the wife last year, Fairfax lawyer Valerie E. Hughes noticed a game-changing detail. The wife had told Hughes the marriage was in Arlington, but the property agreement recited the wedding was in Washington. Hughes started asking questions.

“Then, it all unraveled,” Hughes said. “I couldn’t do a divorce with a question over whether the parties were ever married.”

Marriage invalidation would favor the wife, Hughes said, because she had a much larger pension. Hughes filed a motion for declaration of marriage status in March 2017.

Bellows held first that there was no valid Virginia marriage because the only wedding took place outside of the state. Then he ruled the couple’s one-night stay at a Washington hotel room failed to meet the cohabitation requirement to make it a common law marriage under D.C. law. Virginia does not recognize common law marriage where the relationship is created in this state.

Short duration visit

On appeal, Mr. Porter did not argue the marriage was valid under Virginia law. He sought to make the circumstances fit Washington’s law on common law marriage. He said the parties’ expressed intent to marry, their wedding ceremony and their overnight stay in the same hotel room filled the bill.

But, the Court of Appeals looked to case law from Virginia and elsewhere suggesting a one-night stay in the state in question was insufficient proof of cohabitation for a common law marriage.

“Here, although appellant had significant contact with D.C. as a resident, he and appellee’s contact with D.C. as a couple was brief and insufficient to prove cohabitation for common law marriage purposes,” Annunziata wrote.

“The parties in this case expressed their intent to marry one another in D.C., but they stayed only one night in that jurisdiction,” the court said.

The court denied attorney’s fees for the wife since the case raised “appropriate and substantial” issues and neither party caused unnecessary delay or expense.

Implications for other marriages

If the ruling stands, it could complicate any Virginia marriage where couples took their vows out of state and never held a ceremony in the commonwealth. Hughes said the case attracted a lot of attention among the Northern Virginia divorce bar, with many lawyers attending the June 13 argument session in Alexandria.

The decision means there will be no equitable distribution of the couple’s assets and no spousal support. The wife keeps her own substantial pension, Hughes said. “The court can’t touch that now,” she said.

Mr. Porter was represented by Daniel B. Schy of Fairfax. Schy was not available to say whether his client planned to appeal to the Virginia Supreme Court.


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