With the recent changes in same-sex rights at the federal and state level, local legislators and judges are facing the problem of determining how gay marriages must be terminated, if necessary. In several cases, gay and lesbian couples entered into a civil union when marriage was unavailable to them, and then were legally married when New Jersey law allowed them to be. Now, though, same-sex couples who want to separate may need to take additional steps, family lawyers in New Jersey say.
Last year, the New Jersey Superior Court Case Garden State Equality v. Dow made it legal for same-sex couples to be married in the state, and to enjoy the same legal rights and privileges that heterosexual married couples are granted. Many couples were married as soon as this law was passed, and several of these couples had already been joined in civil unions. Although these unions did not give them the same rights as a legally recognizable marriage, civil unions are still recognized by the state as legally binding, and must be dissolved.
The current state Department of Health rules state that same-sex couples who have already entered into civil unions or domestic partnerships do not have to dissolve or end their legal relationships before marrying, provided they are remaining together, and not entering into marriages with other parties. Although civil unions are still considered valid, these partnerships are not automatically transferred into marriages. Same-sex couples also have the option to choose a civil union over a marriage.
This situation has caused a problem for couples who have been joined in both legal relationships, and now want to separate. As far as the law is concerned, both partnerships are valid, and both must be terminated. The process for ending a civil union or a domestic partnership is similar to filing for a divorce in the state, but with a few notable differences that make the entire process more challenging.
Couples who seek a divorce can cite “irreconcilable differences” as the reason for termination. Provided a couple has been married for at least six months, and cannot work out their differences, a divorce can be filed under irreconcilable differences, which is a no-fault ground. The only no-fault ground option for couples in civil unions and domestic partnerships is a separation, in which couples must live apart for at least 18 months before the partnership can be legally terminated.
New Jersey family lawyers say that this discrepancy will most likely be resolved in the coming months, as legislators work out how best to handle same-sex marriages and unions, post Equality v. Dow. The recent focus on making marriage legal for gay and lesbian couples may have overshadowed the issue of separation for these couples, but as more cases come to light, lawmakers will have to take action.
At Helmer, Conley, and Kasselman, PA, our family lawyers represent same-sex couples in New Jersey who have questions about the changing laws and requirements for legal unions and marriages in the state. If you need a consultation about your case, contact an HCK attorney today.
