Terminating Same-Sex Partnerships

Ending a romantic relationship is always difficult and presents various practical issues, some of which may include support, distribution of assets and custody. The issues that heterosexual couples face when ending a relationship are even more complicated for same-sex couples. The extent of these problems varies by state, depending on each state's recognition of same-sex relationships.

There are three tiers of legally recognized same-sex relationships: Domestic Partnerships, Civil Unions and Marriage. The rights and protections afforded by each of these tiers vary by state, and not all states recognize each of the three tiers. Generally, Domestic Partnerships afford couples the least benefits and protections, and are not recognized by other states that do not permit these partnerships. Civil Unions afford couples nearly all of the same state benefits and protections as married, heterosexual couples, but do not provide for the same Federal benefits or protections. Like Domestic Partnerships, Civil Unions are generally not recognized by other states that do not permit Civil Unions. Same-sex marriage provides couples with the most benefits and automatically conveys couples the same Federal rights and protections as heterosexual marriages.

Jurisdiction

One of the lesser publicized issues that many same-sex couples face when they want to end their relationship is a jurisdictional dilemma. What happens when two people who entered into a Civil Union wish to end their relationship, but neither party currently resides in the state in which the Civil Union was entered? The simple answer would be, they can terminate their relationships in either of the two states in which they are currently residing. However, what happens when neither party resides in a state that recognizes Civil Unions?

Terminating Civil Unions

Most states impose a residency requirement to divorce or terminate a Civil Union, generally between six months to a year. For example, New Jersey imposes a one-year residency requirement to terminate a Civil Union (unless the cause of action alleged is adultery). Other examples of states with residency requirements include but are not limited to, New York, Connecticut, Vermont. Most often people cannot just pick up and relocate to another state in order to satisfy the residency requirement. So what is a couple to do when faced with this problem? There really is no good answer to this question; the problem puts people in this situation at a great disadvantage compared with their heterosexual counterparts.

States are increasingly giving same-sex couples the right to marry, but not affording them the corollary right to obtain a divorce. This problem also poses the ironic question: Why would states that prohibit same-sex marriage or Civil Unions not encourage, or at least allow same-sex couples to terminate their Civil Union or Marriage that occurred in another state? The likely answer is that those states refuse to acknowledge that a legal same-sex relationship ever existed.

Another potential problem arises under the same scenario above, but rather than seeking to terminate their relationship, a couple is seeking to terminate their Civil Union and enter into a legal marriage. Some states permit couples to marry legally without first terminating their Civil Union; New Jersey is among those states. However, a Civil Union does not automatically terminate upon marriage. Therefore, if the parties eventually wish to terminate their marriage, they would also have to terminate their Civil Union. Under the fact pattern above, the couple would be able to terminate the marriage in either of the states in which they currently reside, as legal marriage affords them all of the same relief available to heterosexual married couples. However, they would have a problem terminating the underlying Civil Union due to states' residency requirements.

Terminating Domestic Partnerships

Unlike Civil Unions, in some states, when parties to a Domestic Partnership wish to enter into a Civil Union, their Domestic Partnership automatically terminates. New Jersey is among those states. A Domestic Partnership affords people entering the partnership with the least benefits and protections as compared to Civil Unions or marriage; ironically, Domestic Partnerships afford an unhappy couple who wish to terminate their relationship with an easier way out than a same-sex couple seeking to terminate their Civil Union or marriage.

For example, California does not impose a residency requirement in order to terminate a Domestic Partnership that was registered in California. In fact, the state of California will terminate a Domestic Partnership that was registered in another state, so long as one party is living in California on the date of dissolution. However, these relaxed laws do not apply to California marriages. California imposes a six-month residency requirement to terminate a marriage. And in New Jersey, if a couple entered into a Domestic Partnership in the state, but both parties are currently non-residents, the state permits termination of the Domestic Partnership in the New Jersey county in which the Certificate of Domestic Partnership was filed.

Why Terminate?

Some people may wonder, “What is the big deal about getting a formal divorce if you live in a state that does not recognize your marriage anyway?” While that may seem logical, it is important for people to be able to terminate their relationship legally for a variety of reasons. For example, if one spouse gives birth to a child, in some states the other spouse may be presumed to be a legal parent to that child under the law. Not being able to obtain a legal termination of the relationship also prevents either party from entering into a subsequent marriage or Civil Union. Additionally, a formal termination has very significant emotional consequences, and provides the same closure that heterosexual couples look for in terminating their marriages.

Another problem that same-sex couples face when trying to terminate their relationship is the fact that there exists very little case law and precedent to rely upon in resolving issues related to termination. For example, with regard to support, what happens when a same-sex couple has been together for 25 years, but has only been in a legal Civil Union for three years? In states that do not recognize palimony, technically, the support obligation should be based on a three-year relationship. Is that fair and equitable if the couple did not have the legal right to enter into a Civil Union 25 years ago?

Conclusion

While there are no clear-cut answers to the problems raised herein, there may be light at the end of the tunnel. The Supreme Court of the United States recently agreed to decide whether all 50 states must allow same-sex couples to marry. As part of its consideration, the Supreme Court will decide whether states must recognize a marriage between same-sex couples when the marriage was lawfully licensed and performed in another state. Of course, if the Supreme Court decides that all states must allow same-sex marriage, this second question will be moot. The Supreme Court plans to hear oral argument on these issues soon. Until then, there are many same-sex couples who continue to struggle with the issues discussed above.

Laurence J. Cutler , a member of this newsletter's Board of Editors, is with Laufer, Dalena, Cadicina, Jensen & Boyd, LLC, Morristown, New Jersey. He limits his practice to family and matrimonial law, trials and appeals, and related matters and is a certified mediator and arbitrator. Julie R. Katz is an associate with the firm.

Ending a romantic relationship is always difficult and presents various practical issues, some of which may include support, distribution of assets and custody. The issues that heterosexual couples face when ending a relationship are even more complicated for same-sex couples. The extent of these problems varies by state, depending on each state's recognition of same-sex relationships.

There are three tiers of legally recognized same-sex relationships: Domestic Partnerships, Civil Unions and Marriage. The rights and protections afforded by each of these tiers vary by state, and not all states recognize each of the three tiers. Generally, Domestic Partnerships afford couples the least benefits and protections, and are not recognized by other states that do not permit these partnerships. Civil Unions afford couples nearly all of the same state benefits and protections as married, heterosexual couples, but do not provide for the same Federal benefits or protections. Like Domestic Partnerships, Civil Unions are generally not recognized by other states that do not permit Civil Unions. Same-sex marriage provides couples with the most benefits and automatically conveys couples the same Federal rights and protections as heterosexual marriages.

Jurisdiction

One of the lesser publicized issues that many same-sex couples face when they want to end their relationship is a jurisdictional dilemma. What happens when two people who entered into a Civil Union wish to end their relationship, but neither party currently resides in the state in which the Civil Union was entered? The simple answer would be, they can terminate their relationships in either of the two states in which they are currently residing. However, what happens when neither party resides in a state that recognizes Civil Unions?

Terminating Civil Unions

Most states impose a residency requirement to divorce or terminate a Civil Union, generally between six months to a year. For example, New Jersey imposes a one-year residency requirement to terminate a Civil Union (unless the cause of action alleged is adultery). Other examples of states with residency requirements include but are not limited to, New York, Connecticut, Vermont. Most often people cannot just pick up and relocate to another state in order to satisfy the residency requirement. So what is a couple to do when faced with this problem? There really is no good answer to this question; the problem puts people in this situation at a great disadvantage compared with their heterosexual counterparts.

States are increasingly giving same-sex couples the right to marry, but not affording them the corollary right to obtain a divorce. This problem also poses the ironic question: Why would states that prohibit same-sex marriage or Civil Unions not encourage, or at least allow same-sex couples to terminate their Civil Union or Marriage that occurred in another state? The likely answer is that those states refuse to acknowledge that a legal same-sex relationship ever existed.

Another potential problem arises under the same scenario above, but rather than seeking to terminate their relationship, a couple is seeking to terminate their Civil Union and enter into a legal marriage. Some states permit couples to marry legally without first terminating their Civil Union; New Jersey is among those states. However, a Civil Union does not automatically terminate upon marriage. Therefore, if the parties eventually wish to terminate their marriage, they would also have to terminate their Civil Union. Under the fact pattern above, the couple would be able to terminate the marriage in either of the states in which they currently reside, as legal marriage affords them all of the same relief available to heterosexual married couples. However, they would have a problem terminating the underlying Civil Union due to states' residency requirements.

Terminating Domestic Partnerships

Unlike Civil Unions, in some states, when parties to a Domestic Partnership wish to enter into a Civil Union, their Domestic Partnership automatically terminates. New Jersey is among those states. A Domestic Partnership affords people entering the partnership with the least benefits and protections as compared to Civil Unions or marriage; ironically, Domestic Partnerships afford an unhappy couple who wish to terminate their relationship with an easier way out than a same-sex couple seeking to terminate their Civil Union or marriage.

For example, California does not impose a residency requirement in order to terminate a Domestic Partnership that was registered in California. In fact, the state of California will terminate a Domestic Partnership that was registered in another state, so long as one party is living in California on the date of dissolution. However, these relaxed laws do not apply to California marriages. California imposes a six-month residency requirement to terminate a marriage. And in New Jersey, if a couple entered into a Domestic Partnership in the state, but both parties are currently non-residents, the state permits termination of the Domestic Partnership in the New Jersey county in which the Certificate of Domestic Partnership was filed.

Why Terminate?

Some people may wonder, “What is the big deal about getting a formal divorce if you live in a state that does not recognize your marriage anyway?” While that may seem logical, it is important for people to be able to terminate their relationship legally for a variety of reasons. For example, if one spouse gives birth to a child, in some states the other spouse may be presumed to be a legal parent to that child under the law. Not being able to obtain a legal termination of the relationship also prevents either party from entering into a subsequent marriage or Civil Union. Additionally, a formal termination has very significant emotional consequences, and provides the same closure that heterosexual couples look for in terminating their marriages.

Another problem that same-sex couples face when trying to terminate their relationship is the fact that there exists very little case law and precedent to rely upon in resolving issues related to termination. For example, with regard to support, what happens when a same-sex couple has been together for 25 years, but has only been in a legal Civil Union for three years? In states that do not recognize palimony, technically, the support obligation should be based on a three-year relationship. Is that fair and equitable if the couple did not have the legal right to enter into a Civil Union 25 years ago?

Conclusion

While there are no clear-cut answers to the problems raised herein, there may be light at the end of the tunnel. The Supreme Court of the United States recently agreed to decide whether all 50 states must allow same-sex couples to marry. As part of its consideration, the Supreme Court will decide whether states must recognize a marriage between same-sex couples when the marriage was lawfully licensed and performed in another state. Of course, if the Supreme Court decides that all states must allow same-sex marriage, this second question will be moot. The Supreme Court plans to hear oral argument on these issues soon. Until then, there are many same-sex couples who continue to struggle with the issues discussed above.

Laurence J. Cutler , a member of this newsletter's Board of Editors, is with Laufer, Dalena, Cadicina, Jensen & Boyd, LLC, Morristown, New Jersey. He limits his practice to family and matrimonial law, trials and appeals, and related matters and is a certified mediator and arbitrator. Julie R. Katz is an associate with the firm.