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Dissolution of NJ Civil Unions by Non-Resident Litigants

(The Impossible Dream?)

By Ronald A. Graziano, Esq.

Currently twenty two states recognize civil unions, same sex marriages or domestic partnerships. New Jersey has now indirectly joined that group by abandoning an appeal of a lower court ruling mandating same sex marriage. New Jersey’s Civil Union Act has not been declared unconstitutional and still governs the same sex couples who previously entered into civil unions.

The requirements for a civil union license parallel those for a marriage license. In fact, there are no differences. There is no residency requirement to obtain a marriage license or a civil union license.

It is at the point of dissolution, however, that a divergence perhaps unintended by the Legislature and unforeseen by same sex couples sometimes occurs.

A couple who marries in New Jersey but moves to another State need only meet that State’s residency requirement to file for divorce. In many States, including New Jersey, that residency requirement is one year. That same one year residency requirement exists for dissolution of Civil Unions in New Jersey. Of course, because marriage is recognized in all fifty (50) states the principle of full faith and credit mandates that a marriage in any State can be dissolved in any other State. As a result, heterosexual married couples can divorce in all fifty states. Not so for Civil Unions.

If a couple enters into a Civil Union in New Jersey and thereafter moves into a State that does not recognize Civil Unions, the couple is literally unable to dissolve that civil union unless one partner physically moves and meets the residency requirements of New Jersey or some other state that recognizes civil unions. For the reasons set forth below, this is clearly an impractical solution at best and, in most situations, a virtually impossible one at worst.

Realistically, one member of a civil union cannot just resign employment, leave home and move to another state for a year. Obviously these practical considerations make establishing residency an impossible solution. Some couples might lie about residency – an illegal and possibly immoral action that is certainly not the solution intended by the New Jersey Legislature. The couple could enter into a property settlement agreement and disentangle the economics of their relationship but they would remain in that Civil Union forever – never able to form a different civil union, never able to marry even if their current home state, while not recognizing civil unions, decides to allow same sex marriages. Clearly, the New Jersey Legislature did not intend an original civil union to be, for all practical purposes, perpetual.

In effect, requiring a couple to remain economically and sociologically entangled beyond the time they desire their relationship to end is at least minimally bad policy and possibly actionably discriminatory.

This Civil Union dissolution issue in New Jersey is not a purely academic exercise. Under current law, “…partners in a civil union are deprived of significant federal benefits such as: family and medical leave; Medicare; immigration matters; military and veteran’s affairs; filing a joint federal tax return; and participation in a Survivor Benefit Plan.” Absent a civil union dissolution and a subsequent same sex marriage, that deprivation will persist.

As the situation currently stands, a couple in a civil union is barred from entering into a same sex marriage because the undissolved civil union is an irremediable impediment. That seems to be the case in New Jersey and is specifically so in other states.

One might argue that the solution is for New Jersey to automatically convert civil unions into same sex marriages. Of course, the current state authorities have not indicated any willingness to do so and, perhaps more importantly, such a “conversion” without a couples consent might be in and of itself unconstitutional or at least unnecessarily autocratic.

The most logical and practical solution is legislative. A simple amendment to the Civil Union statute eliminating any residency requirement for the dissolution of civil unions initially formed in New Jersey is all that is needed. This would not be the first or only residency requirement modification for “divorce” – a cause of action for adultery has no residency requirement at all. An individual seeking a divorce on the basis of adultery need not meet the one year residency requirement. Of course, both parties would be required to certify under oath that each consents to dissolution in New Jersey and that their current home state does not recognize civil unions. This would avoid any complications arising out of conflicts with Federal law which now bars recognition across state lines of same-sex marriages. Furthermore, requiring this type of certification would eliminate fraud, abuse or other exploitation of the statute.

Some states have enacted legislation employing a similar approach. However, those states sometimes graft provisions onto the remedial legislation that are both unfair and unnecessary. For example, Vermont mandates that a property settlement agreement be in place before the residency requirement waiver is permitted. This additional requirement, however, deprives a same sex couple of the ability to litigate or at least contest in some fashion economic issues arising out of their union.

New Jersey should not follow this approach but instead should simply waive the classic residency requirement in situations where a dissolution of the civil union for a particular couple would otherwise be impossible absent unnecessary hardship.

NJSA 2A:34-10 should be amended by adding a third paragraph as follows:

3. Except that the one year bona fide resident requirement shall be waived in dissolution of civil union actions for civil unions formed in New Jersey if the partners to that civil union:

  • (a) Reside in a state that does not recognize civil unions; and
  • (b) Consent, in writing, under oath, to jurisdiction in New Jersey of the dissolution proceeding.
Acknowledgement

I would like to thank my three favorite law professors (Michael Dale, Stephanie Ledesma and J.C. Lore) for their critiques and insights. I would also like to thank my law clerks Gina Imeprato and Keith Nagy for helping me sort out the seemingly daily changes in this area of the law.

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