PA Civil Unions and Domestic Partnerships

Pennsylvania began issuing same-sex marriage licenses a year before the Supreme Court decision in Obergefell v. Hodges (see the article in this issueby Frank Gulino) as a result of the Pennsylvania U.S. District Court case Whitewood v. Wolf, 992 F. Supp. 2d 410, 420 (M.D. Pa. 2014). Prior to Whitewood' same-sex couples in Pennsylvania could not obtain a marriage license, and same-sex marriages that occurred in another state were not recognized in Pennsylvania. Consequently, courts in Pennsylvania generally would not dissolve legally established same-sex marriages that occurred in other states. This caused serious problems for same-sex couples who entered into a marriage in another state and could not dissolve their relationship in Pennsylvania. Ordinarily, the same-sex couple could not go back to the state in which they were married to get a divorce because, in order to obtain a divorce, most states require a person to be a resident of that state for a substantial amount of time. Thus, same-sex couples in Pennsylvania were left with very limited options to dissolve their relationship legally.

Although same-sex marriages and divorces can now be granted anywhere in the country, there are a few unanswered questions in Pennsylvania regarding how legal relationships between same-sex couples ' that are not marriages ' should be treated. More specifically, it is unclear whether or not Pennsylvania, a state that does not make state-wide civil unions and/or domestic partnerships available, will dissolve them. In addition, there is a question as to whether a prior civil union or domestic partnership will be counted in determining the property basis for equitable distribution for couples who subsequently marry the same partner with whom they were in a civil union or domestic partnership.

The History of Civil Unions and Domestic Partnerships

In order to understand the legal questions surrounding civil unions and domestic partnerships, it is important to understand what these two legal relationships entail.

Civil Unions

Civil unions were created as a marriage alternative before same-sex marriage was a possibility in any state. Vermont, the first state to provide for a civil union status, created the status to provide same-sex couples the same benefits and protections that Vermont's marriage laws conferred on married heterosexual couples. The concept of a civil union expanded to a number of states, and is now provided in those states as a legal regime that grants same-sex couples all of the state law rights marriage can bestow. However, even in some states where civil unions are available, there are limitations on who can obtain a civil union. For example, in New Jersey, two people can enter into a civil union together only if they are: 1) of the same sex; 2) over 18 years old (or meet the requirements for an exception); and 3) not a party to another domestic partnership, civil union or marriage in the state of New Jersey.

As of today, civil unions exist in four states: Colorado, Hawaii, Illinois, and New Jersey. In these four states, same-sex couples may also marry. Five states ' Connecticut, Delaware, New Hampshire, Rhode Island, and Vermont ' once had civil unions, but since converted all of those relationships into marriages. This means that the couples who entered into civil unions in these states would be automatically considered married as of the date on which they entered into the civil union. Although marriage is now available to same-sex couples in all civil union states, some couples may prefer a civil union to a marriage because one or both of the parties does not want the status of marriage. In addition, at least some means-tested benefits that are imputed upon marriage are not imputed when the parties are in a civil union or domestic partnership.

Domestic Partnerships

Like civil unions, statewide domestic partnerships are used to provide same-sex couples with some legal rights. However, unlike civil unions, the benefits domestic partnerships provide to couples vary from state to state. In some states, domestic partnerships are similar to civil unions and mirror the rights of marriage. In other states, domestic partnerships provide more limited rights. For example, the Maine Domestic Partnership Statute only provides domestic partners priority appointment as a personal representative, guardian, and conservator, special rights in case of the death of a partner and protection of a domestic partner under the state family and medical leave act. In addition, it allows domestic partners to exercise certain rights with regard to workers' compensation benefits. See Me. Rev. Stat. tit. 22, ' 2710.

Many municipalities have domestic partnerships that grant couples more limited rights than those provided in marriage. These municipalities allow for dissolution without judicial intervention. For example, the City of Philadelphia provides for a “life-partnership” registration that is found in the City's Fair Practices Ordinance ' 9-1102(1)(r). This “life partnership” allows partners to designate each other as a dependent to receive health benefits under the City of Philadelphia's employee benefit plan and certain other employee benefit plans, make each other a beneficiary under the City's retirement plan (if one is a City of Philadelphia employee), and transfer property to each other without having to pay City real estate transfer tax (if one lives in Philadelphia). Life Partnership, City's Fair Practices Ordinance ' 9-1102(1)(r).

Dissolving Same-sex Marriage

The Obergefell decision has legalized same-sex marriage in all states. In states like Pennsylvania, which allow same-sex marriage but do not have civil unions or domestic partnerships, there may be a question as to whether or not the courts will dissolve these non-marriage legal relationships. These relationships need to be dissolved legally; if a person in a previous marriage-equivalent relationship does not change the status of that relationship, any subsequent marriage could potentially be invalid because it is polygamous. For example, in the case of Elia-Warnken v. Elia, 463 Mass. 29, 32, 972 N.E.2d 17, 20 (2012), the Massachusetts Supreme Judicial Court held that Todd Warnken's marriage was polygamous because he did not dissolve an out-of-state civil union before marrying a different partner. There is, however, a significant problem with requiring same-sex couples to dissolve their legal non-marriage relationships. Every state that issues civil unions has residency requirements in order to dissolve them. Thus, if a Pennsylvania court is unwilling to dissolve an out-of-state civil union, a same-sex couple might be unable to dissolve their civil union without moving to another state that recognizes the union.

There are at least two possible ways a court can dissolve an out-of-state marriage equivalent, i.e., by exercising equity jurisdiction and/or applying the doctrine of comity.

1. Equity Jurisdiction. First, equity jurisdiction allows a court to grant equitable remedies for the resolution of justiciable disputes and the protection of the rights of citizens. A New York appellate court has held that a civil union entered into in another state could be dissolved under the powers of equity on the theory that no court would be competent to provide the plaintiff the requested relief to dissolve her civil union, and she would therefore be left without a remedy. Dickerson v. Thompson, 88 A.D.3d 121, 928 N.Y.S.2d 97 (2011). Thus, because the plaintiff could not dissolve her relationship, or enter into any other legal relationship, the court dissolved her civil union.

2. Comity. Another option is the doctrine of comity, which is a common law doctrine in which one state gives effect to the legislative, executive or judicial acts of another state (as long as they do not conflict with the state's own laws). At least one other state has recognized that a civil union is the equivalent of a marriage under the doctrine of comity. Elia-Warnken v. Eli , supra, recognized a Vermont civil union as the equivalent of marriage in the Commonwealth of Massachusetts under principles of comity explaining: “We define marriage as 'the voluntary union of two persons as spouses, to the exclusion of all others.' This is the relationship established by Vermont civil unions ' By that definition alone, a Vermont civil union is the functional equivalent of a marriage.” Thus, it is likely that a civil union, since it is equivalent to a marriage, can be dissolved ' at least in Vermont.

A Pennsylvania court dissolved an out-of-state civil union under the Pennsylvania divorce code. Of course, this is just one judge in Montgomery County, and there is no way of knowing if other courts will follow this lower court's lead. Aaron Weems, N.J. Civil Union Dissolved by Pennsylvania Court, Pennsylvania Family Law (Sept. 3, 2014), http://bit.ly/1SZCGex.

Determining the Date of 'Marriage'

It is still uncertain whether Pennsylvania courts will dissolve an out-of-state marriage equivalent. But, even if they do, there is an issue of how these relationships should be treated in the context of divorce proceedings if the couple has subsequently married.

Many same-sex couples have only been married for a short length of time solely because marriage has only become recently available to these couples. Because of this unique situation, it is likely some of these recently married couples have been sharing their lives for much longer than they are married. Unlike unmarried heterosexual partners who had the opportunity to marry and chose not to, same-sex partners did not have the option. Perhaps many same-sex partners may have gotten married if the option were available.

In Pennsylvania, the “date of marriage” determines when the couple seeking divorce acquired assets and debts together. 23 Pa. Cons. Stat. Ann. ' 3501. Ordinarily this date is the date of entering into marriage. However, same-sex couples, who were precluded from marrying under the state's laws, still acquired assets and debt together through their out-of-state marriage equivalent. Consequently, measuring the date of marriage from the date the legal status of marriage was formally conferred is arguably not the equitable method in same-sex marriage cases.

If the couple has entered into a marriage equivalent, it is possible a court will use the date that the initial legal relationship was entered into for equitable distribution purposes. For example, in New Jersey the equitable distribution statute provides that the court may effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by the couple (individually or together) during the marriage or civil union. N.J. Stat. Ann. ' 2A:34-23.1 (West). In order to insure that Pennsylvania's courts will take this approach, legislative action is required if the state wishes to ensure fair valuation of the legal relationship. (In a one-page order issued on July 29, 2015, in the Bucks County Court of Common Pleas, Judge C. Theodore Fritsch Jr. granted a request to have a 2001 commitment ceremony and subsequent 12 years of cohabitation declared a common law marriage.)

Conclusion

Undoubtedly national recognition of same-sex marriage is a victory for the LGBT community because it permits same-sex couples to marry; it also enables these couples to obtain a divorce in any state. However, it is still unclear whether Pennsylvania will dissolve an out-of-state civil union and/or domestic partnership in state court. It will take a ruling from a higher court in Pennsylvania or legislative enactment to determine with certainty whether or not an out-of-state marriage equivalent can be dissolved in Pennsylvania courts. Moreover, questions still remain regarding how civil unions and domestic partnerships will be treated for the purpose of property distribution in the context of a subsequent marriage. Indeed, same-sex couples should be aware of the possible ways their civil unions and domestic partnerships may or may not affect their marriage in Pennsylvania.

Laura Segal, a recent graduate of Rutgers School of Law ' Camden, is clerking for a family court Judge in Camden for the 2015 ' 2016 term. She intends to practice family law, and has published on the post-marriage issues same-sex couples face. This article was written prior to starting her position as a judicial law clerk in New Jersey Superior Court. This article does not reflect the views of the Judiciary.

Pennsylvania began issuing same-sex marriage licenses a year before the Supreme Court decision in Obergefell v. Hodges ( see the article in this issueby Frank Gulino) as a result of the Pennsylvania U.S. District Court case Whitewood v. Wolf , 992 F. Supp. 2d 410, 420 (M.D. Pa. 2014). Prior to Whitewood' same-sex couples in Pennsylvania could not obtain a marriage license, and same-sex marriages that occurred in another state were not recognized in Pennsylvania. Consequently, courts in Pennsylvania generally would not dissolve legally established same-sex marriages that occurred in other states. This caused serious problems for same-sex couples who entered into a marriage in another state and could not dissolve their relationship in Pennsylvania. Ordinarily, the same-sex couple could not go back to the state in which they were married to get a divorce because, in order to obtain a divorce, most states require a person to be a resident of that state for a substantial amount of time. Thus, same-sex couples in Pennsylvania were left with very limited options to dissolve their relationship legally.

Although same-sex marriages and divorces can now be granted anywhere in the country, there are a few unanswered questions in Pennsylvania regarding how legal relationships between same-sex couples ' that are not marriages ' should be treated. More specifically, it is unclear whether or not Pennsylvania, a state that does not make state-wide civil unions and/or domestic partnerships available, will dissolve them. In addition, there is a question as to whether a prior civil union or domestic partnership will be counted in determining the property basis for equitable distribution for couples who subsequently marry the same partner with whom they were in a civil union or domestic partnership.

The History of Civil Unions and Domestic Partnerships

In order to understand the legal questions surrounding civil unions and domestic partnerships, it is important to understand what these two legal relationships entail.

Civil Unions

Civil unions were created as a marriage alternative before same-sex marriage was a possibility in any state. Vermont, the first state to provide for a civil union status, created the status to provide same-sex couples the same benefits and protections that Vermont's marriage laws conferred on married heterosexual couples. The concept of a civil union expanded to a number of states, and is now provided in those states as a legal regime that grants same-sex couples all of the state law rights marriage can bestow. However, even in some states where civil unions are available, there are limitations on who can obtain a civil union. For example, in New Jersey, two people can enter into a civil union together only if they are: 1) of the same sex; 2) over 18 years old (or meet the requirements for an exception); and 3) not a party to another domestic partnership, civil union or marriage in the state of New Jersey.

As of today, civil unions exist in four states: Colorado, Hawaii, Illinois, and New Jersey. In these four states, same-sex couples may also marry. Five states ' Connecticut, Delaware, New Hampshire, Rhode Island, and Vermont ' once had civil unions, but since converted all of those relationships into marriages. This means that the couples who entered into civil unions in these states would be automatically considered married as of the date on which they entered into the civil union. Although marriage is now available to same-sex couples in all civil union states, some couples may prefer a civil union to a marriage because one or both of the parties does not want the status of marriage. In addition, at least some means-tested benefits that are imputed upon marriage are not imputed when the parties are in a civil union or domestic partnership.

Domestic Partnerships

Like civil unions, statewide domestic partnerships are used to provide same-sex couples with some legal rights. However, unlike civil unions, the benefits domestic partnerships provide to couples vary from state to state. In some states, domestic partnerships are similar to civil unions and mirror the rights of marriage. In other states, domestic partnerships provide more limited rights. For example, the Maine Domestic Partnership Statute only provides domestic partners priority appointment as a personal representative, guardian, and conservator, special rights in case of the death of a partner and protection of a domestic partner under the state family and medical leave act. In addition, it allows domestic partners to exercise certain rights with regard to workers' compensation benefits. See Me. Rev. Stat. tit. 22, ' 2710.

Many municipalities have domestic partnerships that grant couples more limited rights than those provided in marriage. These municipalities allow for dissolution without judicial intervention. For example, the City of Philadelphia provides for a “life-partnership” registration that is found in the City's Fair Practices Ordinance ' 9-1102(1)(r). This “life partnership” allows partners to designate each other as a dependent to receive health benefits under the City of Philadelphia's employee benefit plan and certain other employee benefit plans, make each other a beneficiary under the City's retirement plan (if one is a City of Philadelphia employee), and transfer property to each other without having to pay City real estate transfer tax (if one lives in Philadelphia). Life Partnership, City's Fair Practices Ordinance ' 9-1102(1)(r).

Dissolving Same-sex Marriage

The Obergefell decision has legalized same-sex marriage in all states. In states like Pennsylvania, which allow same-sex marriage but do not have civil unions or domestic partnerships, there may be a question as to whether or not the courts will dissolve these non-marriage legal relationships. These relationships need to be dissolved legally; if a person in a previous marriage-equivalent relationship does not change the status of that relationship, any subsequent marriage could potentially be invalid because it is polygamous. For example, in the case of Elia-Warnken v. Elia , 463 Mass. 29, 32, 972 N.E.2d 17, 20 (2012), the Massachusetts Supreme Judicial Court held that Todd Warnken's marriage was polygamous because he did not dissolve an out-of-state civil union before marrying a different partner. There is, however, a significant problem with requiring same-sex couples to dissolve their legal non-marriage relationships. Every state that issues civil unions has residency requirements in order to dissolve them. Thus, if a Pennsylvania court is unwilling to dissolve an out-of-state civil union, a same-sex couple might be unable to dissolve their civil union without moving to another state that recognizes the union.

There are at least two possible ways a court can dissolve an out-of-state marriage equivalent, i.e., by exercising equity jurisdiction and/or applying the doctrine of comity.

1. Equity Jurisdiction. First, equity jurisdiction allows a court to grant equitable remedies for the resolution of justiciable disputes and the protection of the rights of citizens. A New York appellate court has held that a civil union entered into in another state could be dissolved under the powers of equity on the theory that no court would be competent to provide the plaintiff the requested relief to dissolve her civil union, and she would therefore be left without a remedy. Dickerson v. Thompson , 88 A.D.3d 121, 928 N.Y.S.2d 97 (2011). Thus, because the plaintiff could not dissolve her relationship, or enter into any other legal relationship, the court dissolved her civil union.

2. Comity. Another option is the doctrine of comity, which is a common law doctrine in which one state gives effect to the legislative, executive or judicial acts of another state (as long as they do not conflict with the state's own laws). At least one other state has recognized that a civil union is the equivalent of a marriage under the doctrine of comity. Elia-Warnken v. Eli , supra, recognized a Vermont civil union as the equivalent of marriage in the Commonwealth of Massachusetts under principles of comity explaining: “We define marriage as 'the voluntary union of two persons as spouses, to the exclusion of all others.' This is the relationship established by Vermont civil unions ' By that definition alone, a Vermont civil union is the functional equivalent of a marriage.” Thus, it is likely that a civil union, since it is equivalent to a marriage, can be dissolved ' at least in Vermont.

A Pennsylvania court dissolved an out-of-state civil union under the Pennsylvania divorce code. Of course, this is just one judge in Montgomery County, and there is no way of knowing if other courts will follow this lower court's lead. Aaron Weems, N.J. Civil Union Dissolved by Pennsylvania Court, Pennsylvania Family Law (Sept. 3, 2014), http://bit.ly/1SZCGex.

Determining the Date of 'Marriage'

It is still uncertain whether Pennsylvania courts will dissolve an out-of-state marriage equivalent. But, even if they do, there is an issue of how these relationships should be treated in the context of divorce proceedings if the couple has subsequently married.

Many same-sex couples have only been married for a short length of time solely because marriage has only become recently available to these couples. Because of this unique situation, it is likely some of these recently married couples have been sharing their lives for much longer than they are married. Unlike unmarried heterosexual partners who had the opportunity to marry and chose not to, same-sex partners did not have the option. Perhaps many same-sex partners may have gotten married if the option were available.

In Pennsylvania, the “date of marriage” determines when the couple seeking divorce acquired assets and debts together. 23 Pa. Cons. Stat. Ann. ' 3501. Ordinarily this date is the date of entering into marriage. However, same-sex couples, who were precluded from marrying under the state's laws, still acquired assets and debt together through their out-of-state marriage equivalent. Consequently, measuring the date of marriage from the date the legal status of marriage was formally conferred is arguably not the equitable method in same-sex marriage cases.

If the couple has entered into a marriage equivalent, it is possible a court will use the date that the initial legal relationship was entered into for equitable distribution purposes. For example, in New Jersey the equitable distribution statute provides that the court may effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by the couple (individually or together) during the marriage or civil union. N.J. Stat. Ann. ' 2A:34-23.1 (West). In order to insure that Pennsylvania's courts will take this approach, legislative action is required if the state wishes to ensure fair valuation of the legal relationship. (In a one-page order issued on July 29, 2015, in the Bucks County Court of Common Pleas, Judge C. Theodore Fritsch Jr. granted a request to have a 2001 commitment ceremony and subsequent 12 years of cohabitation declared a common law marriage.)

Conclusion

Undoubtedly national recognition of same-sex marriage is a victory for the LGBT community because it permits same-sex couples to marry; it also enables these couples to obtain a divorce in any state. However, it is still unclear whether Pennsylvania will dissolve an out-of-state civil union and/or domestic partnership in state court. It will take a ruling from a higher court in Pennsylvania or legislative enactment to determine with certainty whether or not an out-of-state marriage equivalent can be dissolved in Pennsylvania courts. Moreover, questions still remain regarding how civil unions and domestic partnerships will be treated for the purpose of property distribution in the context of a subsequent marriage. Indeed, same-sex couples should be aware of the possible ways their civil unions and domestic partnerships may or may not affect their marriage in Pennsylvania.

Laura Segal, a recent graduate of Rutgers School of Law ' Camden, is clerking for a family court Judge in Camden for the 2015 ' 2016 term. She intends to practice family law, and has published on the post-marriage issues same-sex couples face. This article was written prior to starting her position as a judicial law clerk in New Jersey Superior Court. This article does not reflect the views of the Judiciary.