State of the Civil Union

Title:
State of the Civil Union
Publication:
Town Topics of Princeton, February 8, 2012
Practice:

Over the past several months, there has been a great deal of attention paid to the fact that same sex marriages were legalized in the State of New York.   The momentum created from New York’s recognition of same sex marriages may have carried over to New Jersey.  On January 17, 2012, the Marriage Equality and Religious Exemption Act was introduced to the New Jersey State Assembly.  The proposed bill would allow same sex couples to marry in the State of New Jersey. 

While the State of New Jersey does not recognize same sex marriages, it is one of the few states to recognize civil unions.   This article will explain what a civil union is, how civil unions compare to marriage in several important areas, and finally the effect civil unions have upon their precursor, domestic partnerships.

What are Civil Unions?

Under New Jersey Law, a civil union is a legally recognized union of two individuals of the same sex.  In the words of the civil union legislation, a New Jersey civil union grants “all of the same benefits, protections and responsibilities under the law, whether they derive from statute, administrative or court rule, public policy, common law or any other source of civil law, granted to spouses in a marriage.”

Similar to marriage, members of civil unions are entitled to many state-based rights and responsibilities including but not limited to:  rights to family leave benefits, health and pension benefits, obligations and benefits relating to taxes imposed by the state or a municipality, rights relating to emergency medical care and hospital visitation, rights relating to inheritance, rights to judicial courts relating to separation, termination of a civil union and caring for the children of the couple. 

Along with these benefits, civil unions also incorporate the same legal responsibilities towards your civil union partner as others have towards their spouses, such as liability for your partner’s debts in certain circumstances, limitation on your ability to make unilateral decisions about your property and who will inherit from you, and obligations to provide support for your partner both during the civil union and if it is terminated.

The following topics illustrate how similar and dissimilar civil unions can be from state recognized marriages.

 


Getting a Civil Union

The process for getting a civil union is largely the same as getting a marriage in New Jersey.  First, you must obtain a civil union license from a licensing officer, such as a clerk or registrar, in the municipality where either party resides.  The ceremony may be performed by the same individuals authorized to perform marriages in New Jersey, including a minister of a particular religion, judges and other officials. 

Similar to a different sex couple deciding to get married, those same sex couples deciding to enter into a civil union must be:  (1) over the age of 18 (or meet specific requirements for an exception); (2) not a party to another civil union, domestic partnership (defined below) or marriage; (3) not closely related to each other (for example, not a descendant, sibling, niece, nephew, aunt or uncle). 

New Jersey does not have a residency requirement to obtain a New Jersey civil union license, through the civil union must be performed within New Jersey.  If neither party is a resident of the State the license is issued by the Registrar in the municipality in which the proposed civil union is to be performed and is only valid in that municipality.

Lack of Recognition from Federal Government

Because civil unions are a recognized relationship on the state level, the federal government is not forced to respect a civil union for the purpose of federal benefits, protections, and obligations that married spouses have, such as Social Security benefits, veterans’ benefits, taxation and immigration protections.  Regarding immigration for example, since the Federal government does not recognize same-sex unions, a non-US resident who is a member of a civil union may not obtain US citizenship based on the relationship.  Not only does the federal government fail to recognize civil unions, it also fails to recognize same sex marriages as well. 

Recognition of New Jersey Civil Unions

You cannot be certain whether your civil union will be respected should you travel or move to most other states.  That can mean if you move to another state, you may not be considered members of a civil union.  You may also be unable to dissolve your civil union in another state if the relationship ends. 

New Jersey provides that civil unions entered into elsewhere will be treated as a valid union in New Jersey.   If a same sex couple is married in another state or country, those marriages will be respected only as civil unions in New Jersey. 

 


Children and Civil Unions

If both partners to the civil union had a formal legally-recognized parent status to children before the union (e.g., through adoption), the status remains unaltered legally by the civil union, as both partners remain legal parents.  If one partner did not have a formal legally recognized parent status prior to the civil union, the civil union will not change the legal status of the individual in relation to the child.  The only certain way to become a formally legally recognized parent in this situation is for the second parent to adopt the child in court.  If a child is born to one partner after the couple enters into a New Jersey civil union, both partners will be legally presumed to be the child’s legal parents within New Jersey, just as a child born into a marriage is presumed to be the child of both spouses. 

Since the civil union and the protections under New Jersey law that flow from it may not be accorded legal respect in other states, relying on the fact of the civil union alone to establish legal parenthood exposes an individual and that person’s child to the risk that parenthood may be challenged in another jurisdiction.  Therefore, it is vital that you consult with an attorney and pursue securing your child’s legal status with both parents through a second-parent adoption.  Similarly, if a civil union couple adopts a child, the legal relationship of the child should be secured with both parents through joint or second-parent adoption. 

Name Change

Similar to marriage, following the enactment of the Civil Union Act, an individual entering into a civil union may assume the name of his or her partner or each can assume the hyphenated version of the two names.

Termination of Civil Union

In order to terminate a civil union, the same process is followed in order to terminate a marriage.  Essentially the same steps and criteria for nullifying or dissolving a marriage apply to a civil union, as do provisions for alimony, dividing assets and allocating responsibilities for the partners’ children.  

New Jersey does have a residency requirement to bring a court proceeding to terminate a civil union, as with marriage.  If someday a member of a civil union in New Jersey decides to terminate the union, that individual may not be able to do so if he or she no longer resides in the state of New Jersey. 

Domestic Partnerships, A Precursor to Civil Unions

In 2003, four years before the state adopted its civil union legislation, New Jersey was one of the first states to implement domestic partnerships when it passed the Domestic Partnership Act.  Even though New Jersey has authorized civil unions, the domestic partnership law remains in effect. 

The rights provided in a domestic partnership pale in comparison to those involved in a civil union as domestic partnerships only provide basic rights in the area of medical benefits and state tax incentives.  As for the medical benefits, domestic partners have guaranteed visitation rights at all licensed health care facilities for a patient’s domestic partner and inclusion of a patient’s domestic partner within the definition of “immediate family” for purposes of the statuses regulating nursing, convalescent and boarding homes.   However, the act does not require family leave to care for an ill partner.

Domestic partners also enjoy certain tax incentives including an exemption from the New Jersey transfer inheritance tax for property inherited by an individual from a partner’s estate as well as the inclusion of a domestic partner as a dependent for New Jersey gross income tax purposes.

Domestic partners can share in pension and other benefits under certain circumstances.  The domestic partner of an individual who is a state-employee member of a State administered retirement system is entitled to all of the benefits provided by that system to spouses of employees.  A surviving domestic partner has the same intestacy rights as a surviving spouse and the authority to make funeral arrangements for the deceased domestic partner.

Same sex couples who entered into registered domestic partnerships before the effective date of February 19, 2007 for the new civil union law have the option of remaining as domestic partners or entering into a civil union.  It is important to note that entry into a civil union will automatically terminate the domestic partnership.  As of the effective date for civil unions noted above, the only new domestic partnerships that are authorized are for couples, either same sex or opposite-sex in which both partners are 62 years or older.  Therefore, same sex couples wherein both partners are under the age of 62 no longer have the option of entering into domestic partnerships.