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Complex Compromise: Civil Union Act’s Steps Toward Equality Stumble Over State, Federal Differences

by Karen M. Stockmal

Summer 2007, Vol. 70, No. 2

On February 19, 2007, New Jersey's new legislation granting same-sex couples the right to enter into a state-recognized civil union became effective. By now just about every mid-Atlantic lawyer is aware of this legislation. But what, exactly, does it mean? How is it legally distinct from existing domestic partnerships and how, if at all, does it differ from a marriage in the eyes of the law? We have all heard vague explanations, the most common of which is that civil unions "bestow all the rights and responsibilities that marriage does." While in a limited sense this is true, it is also an oversimplification of the legal complexities involved both at the state and federal levels.

So, how did the right to enter into a civil union evolve in New Jersey? In October 2006, the New Jersey Supreme Court entered a landmark decision in Lewis v. Harris holding that the New Jersey Constitution was violated by denying same-sex couples the rights and benefits given to heterosexual couples. The court directed the Legislature to remedy this violation either by amending the laws concerning marriage to include same-sex couples or by enacting parallel legislation "in which same-sex couples would not only enjoy the rights and benefits, but also bear the burdens and obligations of civil marriage."

The Legislature chose to meet this mandate by establishing the Civil Union Act, which amends the marriage statutes to include the committed unions entered into by same-sex couples. The act provides that for two people to establish a civil union, they must satisfy three criteria: neither may be a party to another civil union, domestic partnership or marriage; they must be of the same sex; and both must be at least 18 years old. The same exceptions for persons marrying prior to age 18 apply to persons applying for a civil union prior to age 18. Neither party need be a New Jersey resident in order to establish a civil union there.
The act provides that "civil union couples shall have all of the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, public policy, common law or any other source of civil law, as are granted to spouses in a marriage." In addition, the dissolution of a civil union must follow the same procedures and subject the parties to the same substantive rights and obligations that are involved in divorce.

One area of the law in which civil union couples are now included in the same manner as married persons is domestic relations, including annulment, premarital agreements, separation, child custody and support, property division and maintenance, and post-relationship spousal support.

The act enumerates certain rights that are conferred by civil union. The list is not exclusive, but includes rights concerning real and personal property, its descent and distribution, intestate succession, survivorship, ownership or transfer, both during lifetime and at death. Specifically enumerated is also the eligibility to hold property as tenants by the entirety.

Several other areas of the law impacted by the Civil Union Act include actions for wrongful death, emotional distress and loss of consortium, probate law, adoption law, insurance, health and pension benefits, domestic violence protections, prohibitions against discrimination based upon marital status and workers’ compensation benefits.

A party to a civil union may make medical decisions for his or her partner and may pursue family leave and public assistance benefits in the same manner as a married spouse. Parties to a civil union have immunity from compelled testimony and the marital communication privilege as do their married counterparts. In addition, a spouse may change his or her name without petitioning the court. Parties to a civil union are subject to taxation by the state and local authorities as married persons are, including homestead rebate tax allowances, tax deductions and exemptions from realty transfer tax.

Because the federal government refuses to recognize same-sex couples, civil union spouses are considered single for all federal purposes. The federal Defense of Marriage Act precludes same-sex couples from meeting the statutorily defined terms "husband," "wife" and "marriage." As such, civil union spouses are not entitled to spousal social security benefits as their married counterparts are. Similarly, pensions regulated by the Employee Retirement Income Security Act (ERISA) are not permitted to recognize same-sex couples.

Complexities arise in areas where federal law intersects with state law. In the area of taxation, wherever New Jersey tax law references federal tax exemptions or filing status, New Jersey law is interpreted as if federal law recognized civil unions in the same way New Jersey does. This may require the preparation of a federal tax return that will not be filed, but which reflects what a federal tax return for the couple would look like if the federal government recognized civil unions as New Jersey does, in order to obtain the information required for the state tax return.

Since 2004, New Jersey has recognized domestic partnerships, which provides some limited state-level benefits including inheritance rights and the right to make medical decisions on behalf of a domestic partner. Eligible persons until the Civil Union Act became effective were same-sex couples age 18 or older and opposite-sex couples age 62 or older. In order to establish a domestic partnership, a couple must demonstrate that they reside together, share financial responsibility and either live in New Jersey or participate in a New Jersey state-administered retirement system. They also cannot be related, currently married or in a civil union or partnership with another person, and must not have terminated another domestic partnership within the last 180 days (unless the previous partner died).

With respect to existing domestic partnership legislation from 2004, the Civil Union Act states that when a same-sex couple enters a civil union, their domestic partnership is automatically terminated. In addition, domestic partnerships may no longer be registered by same-sex couples, effective February 19, 2007. Couples who previously established and remain in domestic partnerships who do not enter into a civil union will be allowed to remain as domestic partners. The new definition of a domestic partnership continues to include couples (same- or opposite-sex) who are at least 62 years old, and who meet all other requirements for being deemed eligible to register a domestic partnership. A domestic partnership is created by an affidavit signed by the two parties and filed with the state.

It is fair to say that the Civil Union Act has caused considerable controversy. Interestingly, the controversy stems not only from the rights it grants, but also from what it fails to grant. While opponents to gay marriage say the Civil Union Act furthers the gay agenda by equating civil unions with marriages, according to the Gay and Lesbian National Task Force, the federal government accords 1,138 benefits and responsibilities based on marital status alone, not on civil union status. Even if marriages and civil unions were treated identically under the law, comments a member of Gay and Lesbian Advocates and Defenders, the fact that a civil union is just for gay people represents inequality where the Constitution requires equality for all.

Karen M. Stockmal is an associate at Pepper Hamilton LLP and co-chair of the Education Committee of the Probate Section. Her e-mail address is

Know Your Neighbor: New Jersey Civil Unions Present New Challenges for Philadelphia’s Family Lawyers

by Mark A. Momjian and Margaret Klaw

Much of the focus on New Jersey's Civil Union Act is on what rights are conferred on the same-sex couple once the civil union license is issued. Little attention, on the other hand, is paid to what happens when the couple separates and one of the former domestic partners seeks dissolution of the civil union. Thousands of same-sex couples across the United States are availing themselves of civil union or domestic partnership status without a full understanding of the legal consequences if the couple travels out-of-state and establishes residency in a jurisdiction that is hostile to civil unions or domestic partnerships.

Pennsylvania's version of the Defense of Marriage Act (often referred to as a mini- or junior-DOMA) states that a marriage between persons of the same sex that was entered into in another state or foreign jurisdiction shall be void in Pennsylvania. This prevents same-sex couples who get married in Massachusetts from seeking dissolution in Pennsylvania. But Pennsylvania’s mini-DOMA is silent on the issue of civil unions and domestic partnerships. In 2006, the Pennsylvania Legislature failed to pass a proposed state constitutional amendment that would have permanently barred both same-sex marriage and civil unions.

New Jersey has no residency requirement to obtain a civil union license. To terminate the civil union, however, one of the parties must be a resident of New Jersey for at least one year prior to the filing of the dissolution action, except in cases of adultery. This is the same residency requirement for couples seeking a divorce in New Jersey.

As a result, the Pennsylvania family lawyer should expect — in the very near future — to start seeing clients who are parties to New Jersey civil unions they now wish to dissolve, but as residents of Pennsylvania, they will be ineligible to obtain those dissolutions from the New Jersey courts.

Does a Pennsylvania family court's subject matter jurisdiction extend beyond divorce and annulment into the broader realm of dissolution of the family? Does a Pennsylvania family court have equity jurisdiction to dissolve a New Jersey civil union and to adjudicate the division of property and ancillary economic claims? Does a Pennsylvania family court have jurisdiction to dissolve a New Jersey civil union based on its power to enforce contracts and to adjudicate contractual disputes, including express or implied contracts between unmarried cohabitants?

In trying to answer these questions, many Pennsylvania family lawyers look to the example of Vermont. Vermont’s civil union law went into effect on July 1, 2000. Of the approximately 8,000 civil unions entered thus far in Vermont, more than 85 percent were contracted by couples from out-of-state. Several hundred of these Vermont civil unions were issued to Pennsylvania residents.

In a 2004 case decided by the Massachusetts Superior Court, a family court dissolved a Vermont civil union at the request of the plaintiff, a resident of Massachusetts who filed a complaint in equity seeking to dissolve a Vermont civil union issued in 2002. The defendant was a resident of Arkansas and did not file any responsive pleading or enter his appearance in the Massachusetts action. The Massachusetts family court held that the parties were in need of a judicial remedy to dissolve their legal relationship created by the laws of Vermont. The former domestic partners requested the family court to enforce a separation agreement signed by the couple providing for the distribution of their property and a comprehensive settlement and resolution of all other rights and responsibilities between them. In granting the relief requested, the family court held that its subject matter jurisdiction included the adjudicatory power to enforce separation agreements that are free from fraud and coercion.

In 2005, the Iowa Supreme Court decided a case involving the interstate dissolution of a Vermont civil union entered into by two Iowa residents in 2002. The parties agreed to divide their property and debt, and upon application by both women in 2003, an Iowa family court entered a dissolution decree. The family court stated that based on the general equity powers conferred on it under Iowa law, it had equitable subject matter jurisdiction to declare the status and rights of the parties. Accordingly, it terminated the Vermont civil union and also ratified the parties' property settlement agreement.
Subsequently, a group of plaintiffs including six state legislators from Iowa, as well as one member of Congress, petitioned for certiorari review to challenge the family court’s termination of the Vermont civil union. The cert. petition was granted by the Iowa Supreme Court.

At oral argument, much of the focus centered on whether the plaintiffs had standing to challenge the dissolution decree. One justice questioned whether the case was even properly before the Iowa Supreme Court in light of the fact that the appeal was not made by either of the former domestic partners or by the family court judge who ruled on the case. Another justice noted that while same-sex marriage was not permitted in Iowa under that state's mini-DOMA, nowhere in the state law was there a prohibition against civil unions.
Ultimately, the Iowa Supreme Court held that the plaintiffs lacked standing to challenge the family court's decree dissolving the Vermont civil union. The court not only held that the plaintiffs lacked standing to bring the action, but also held that the plaintiffs did not satisfy any public interest exception to the general rule for standing because the plaintiffs were attempting to represent the general public and had demonstrated no authority for doing so. The plaintiffs did not have a specific personal or legal interest in the underlying action, and therefore any injuries alleged by the plaintiffs were purely abstract, not in fact. The court further held that: "It would be strange indeed and contrary to our notions of separation of powers if we were to recognize that legislators have standing to intervene in lawsuits just because they disagree with a court's interpretation of a statute." Because the plaintiffs had no standing to challenge the family court's decree dissolving the Vermont civil union, the Iowa Supreme Court annulled the writ of cert.

In Pennsylvania, the subject matter jurisdiction of a family court extends to matters relating to domestic relations and the dissolution of the family. The Court of Common Pleas has the power to make rules and orders of court as the interest of justice or the business of the court may require, and the Judicial Code in Pennsylvania confers upon the Court of Common Pleas "unlimited original jurisdiction of all actions and proceedings, including all actions and proceedings heretofore cognizable by law or usage in the court of common pleas."
Thus, there are strong arguments that a Pennsylvania family court has equity jurisdiction to dissolve a New Jersey civil union. If one of the parties to a New Jersey civil union is a bona fide resident of Pennsylvania, and that Pennsylvania resident is in need of a judicial remedy to dissolve a legal relationship created in New Jersey, a growing body of case law outside of Pennsylvania suggests that interstate dissolution of a civil union or domestic partnership is sustainable, provided there is no constitutional or statutory impediment with regard to the recognition of out-of-state civil unions or domestic partnerships.

Mark A. Momjian is a partner at the law firm of Schnader, Harrison, Segal & Lewis. Margaret Klaw is a partner at the law firm of Berner & Klaw. The authors are the co-chairs of the Committee on the Legal Rights of Unmarried Cohabitants of the Philadelphia Bar Association’s Family Law Section.