Currently, even in states where gay marriage is legal, gay divorce can be a complete legal nightmare. The laws and regulations governing same-sex divorce and dissolution of same-sex domestic partnerships and civil unions is in major flux, changing as quickly as laws concerning legalizing same-sex marriage, civil unions and domestic partnerships throughout the country. That is why having the right attorney is critical. At Lyons & Associates, P.C. we can walk you through the process.
This week the Supreme Court will hear case concerning the right of same sex couples to marry in California in Hollingsworth v. Perry; a case considering the constitutionality of California’s gay marriage ban known as Proposition 8. http://www.usnews.com/news/articles/2013/03/25/supreme-court-readies-for-gay-marriage-cases
The very next day, the Court will hear arguments in United States v. Windsor, which challenge the constitutionality of a section in the Defense of Marriage Act (DOMA). DOMA was passed by Congress and signed by President Clinton in 1996 and prohibits federal recognition of same-sex marriages. Both the First and Second Circuit Court of appeals have struck down a provision of the law (called Section 3) that denies federal benefits to same-sex couples who are legally married. Because of these lower court rulings, DOMA has been declared unconstitutional in some regions of the country but not others. In the case currently before the Court, the plaintiff, Edith Windsor, lived with her partner Thea Spyer in New York for more than four (4) decades. They finally married in 2007, and when Spyer died in 2009, she left Windsor her estate. Because DOMA didn’t recognize their marriage — even though the state of New York did — the IRS hit Windsor with $363,053 in estate taxes. Several states, including Texas, also have their own DOMA laws, further complicating the process.
To add to the confusion, some states which do not allow same-sex marriages, DO allow same-sex divorce! http://www.huffingtonpost.com/2012/05/18/same-sex-divorce-maryland-court_n_1527419.html.
Currently, New Jersey recognizes civil unions. New Jersey was one of the first states to implement a domestic partnerships scheme, after California, in 2003. New Jersey Legislature enacted the Domestic Partnership Act on January 12, 2004, which came into effect on July 10, 2004. The law made domestic partnerships available to all same-sex couples, as well as to different-sex couples aged 62 and older. The domestic partnership statute provided some limited healthcare, inheritance, property rights and other rights and obligations but did not approach the broad array of rights and obligations afforded to married couples. For example, the law required health and pension benefits only for state employees, it was voluntary for other employers, and it did not require family leave to care for an ill partners.
In 2006, the New Jersey Supreme Court in a four to three decision in the case of Lewis v. Harris, struck down the domestic partnership arrangement, and requested in that opinion that the legislature create a vehicle to ensure equality for same sex couples. In December of 2006, the New Jersey Legislature passed a bill providing for civil unions and recognizing other states’ civil unions.
Recently, a same-sex marriage bill was introduced to the New Jersey legislature but was defeated in the Senate on January 7, 2010. A similar bill passed both houses of the legislature in February 2012 but was vetoed by Governor Chris Christie.
Same-sex couples who enter into a civil union are provided almost all of the rights granted to married couples under New Jersey state law. However, under the provisions of the federal Defense of Marriage Act or DOMA, same-sex couples in marriages, civil unions, or domestic partnerships do not have any right or entitlement to the 1,138 rights that a married couple has under federal law. Defense of Marriage Act: Update to Prior Report, Letter to Senator Bill Frist. General Accounting Office. United States. January 23, 2004.
New Jersey will recognize same-sex marriages established under the nine states —Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, and Washington — that as of January 2013 have legalized same-sex marriage, representing 15.7% of the U.S. population.
This recognition is on a conditional basis whereby New Jersey both gives substantial effect to the Massachusetts relationships by providing all of the rights and obligations of marriage and comports with the intent of the New Jersey Legislature to provide those rights to same-sex couples through a civil union. Similarly, with respect to same-sex marriages formed under the laws of foreign nations, as “a general matter, the laws of one nation do not have force or effect beyond its borders.” Hennefeld v. Township of Montclair, 22 N.J. Tax 166, 178 (Tax 2005) (quoting In re. Kandu, 315 B.R. 123, 133 (Bankr. W.D. Wash. 2004)). Comity, however, permits States to give effect to foreign laws and laws of other states regarding same sex marriage. Recognizing same-sex marriages established in foreign nations and other states respects those laws and comports with New Jersey’s legislative decision regarding the provision of rights and obligations to same-sex couples.
On February 21, 2013 state Democratic leaders announced plans to hold a vote to override the governor’s 2012 veto. The legislation needs 3 additional votes in the Senate and 12 in the House. http://www.politickernj.com/63440/senate-and-assembly-hold-gay-marriage-veto-override-end-term-gusciora-says
Contact the Law Office of Lyons & Associates
If you are in a situation where you need to deal with the legalities of a same-sex divorce or dissolving a same-sex domestic partnership or civil union, we strongly encourage you to contact us at Lyons & Associates, P.C. either by filling out our online intake form or by calling our office at 908-575-9777. Our family law attorneys are familiar and current regarding laws affecting same-sex couples in New Jersey.
Written By: Jennifer Presti