The other buzz of activity in the legislature dealing with family law has come at the direction of the NJ Supreme Court in the Lewis v. Harris decision. In that decision, the court in a 7-0 decision stated that NJ’s prohibition on same sex marriages violates the state constitution’s equal protection clause. The Domestic Partnership Act which the state currently has on the books does not provide to same sex couples the same level of rights, protections, privileges and obligations that heterosexual couples have under the marriage statutes.
The court gave the legislature 180 days to rectify the laws of NJ to comply with the decision. Four of the justices decided to allow the legislature to determine what to call the new structure (marriage itself or something else) while the three dissenting judges thought that calling same sex relationships anything other than “marriage” creates a separate but equal situation and was still not consistent with equal protection.
Given the controversial and divisive nature of this subject, this decision has created a bit of a stir. Some legislators have proposed laws (A1398) and a constitutional amendment (ACR134/SCR79, ACR216 and SCR124) to ban recognition of same sex marriages. Others have introduced legislation to allow marriage itself to apply to two same sex people (A3685). The one that seems most likely to pass is a “civil union” statute (A3787 and S2407). This has the support of the legislative leadership, the governor and the people of the state (in most of the recent surveys). Of course, with some type of same sex union comes the issue of dissolving the ones that do not work out.
I attended one our semi-monthly meetings of the NJ Association of Professional Mediators (NJAPM) this week and the changes in the state of marriage laws was one of the topics. Of course, we were looking at it from the standpoint of divorce and pre-nuptual agreements (which is just an advance divorce agreement). Stephen J. Hyland, an attorney specializing in same sex couple issues talked about the current state of things in this subject area. It’s a little more complicated than simply marriage or civil union between two people of the same sex.
One area of difference is the recognition of the civil union’s dissolution (or even ongoing) elements by other states who do not legally recognize same sex coupling. What if the couple owns property in a non-recognizing state? What if one of the partners move to a state that does not recognize civil unions or same sex marriage? What if the couple has a child (maybe a lesbian in-vitro child) and another state won’t recognize the child’s same sex parentage (without a “legal” adoption)? What about the custody of the child of a divorcing couple being recognized in another state that doesn’t allow same sex unions? How does the federal Parental Kidnapping Prevention Act (1980), which requires other states to recognize a home state’s judicial custody orders, apply in these cases?
Another major area of issues comes from the federal Defense of Marriage Act, passed in 1996. The law has two major impacts. First, no state is obligated to recognize the same sex marriage recognized by another state. Second, for purposes of all federal statutes and regulations, marriage (and the term spouse) is limited to one woman and one man. This can complicate a divorce in the area of alimony, which has tax benefits that may not be available to same sex couples. Also, state tax law uses your federal filing status. If a civilly unioned couple cannot file a married to the IRS, how will the state handle it?
It appears that people who were registered under the Domestic Partnership Act and become civilly unioned will have their partnership automatically terminated. But this leads to other issues. If a couple has been together for 20 years and divorces 5 years after entering a civil union, what timeframe determines spousal support and equitable distribution? Is it the 5 years or 25 years? How would the partnership act impact this? Incidentally, the Domestic Partnership Act (which provides some rights, but not the full breadth that a civil union statute would) looks like it will remain on the books (primarily for heterosexual couples over 62).
Certainly this is an area where things will change rapidly and where the courts will likely be sorting through the details. Like the irreconciable differences bill, I will post updates as they happen.
Thanks again to Stephen Hyland for his insights. His website is http://www.njdomesticpartnership.com.