Civil unions and legal confusion

Law on gay partnerships leaves many questions unanswered

BY ROBERT SCHWANEBERG, Star-Ledger (nj.com) from the Web, February 9, 2007

Donna Waliky and Lill Rimac of Rockaway Township are registered domestic partners.  Steven Goldstein and Daniel Gross of Teaneck traveled to Vermont to form a civil union.  Lianne Sullivan-Crowley and Julie Sullivan were married in Massachusetts before Princeton University made Lianne an irresistible job offer and they moved here.

They are among thousands of same-sex couples in New Jersey who have formed some sort of union recognized by some government.  California, Hawaii and Maine also offer domestic partnerships; Connecticut authorized civil unions in 2005.  Canada and some other countries recognize same-sex marriage.

Each of those arrangements will carry different legal consequences when New Jersey's civil union law goes into effect on Feb. 19.  Some will automatically trigger all the benefits the new law provides; others will not.  It remains an open question whether New Jersey will recognize same-sex marriages performed in other jurisdictions.

"It's a mess," said Sally Goldfarb, a professor at Rutgers School of Law in Camden.  "I teach family law; I try to follow these issues.  It's incredibly complicated."

"This is the kind of uncertainty that arises when you have this proliferation of different legal statuses," Goldfarb continued.  "This is one reason why advocates for same-sex marriage say that marriages are the only sensible way to proceed."

In a landmark decision in October, the New Jersey Supreme Court ruled same-sex couples must be allowed to form unions that carry all the benefits of marriage.  But the justices gave lawmakers the option of calling those relationships something else, and the Legislature adopted the label "civil unions."

This is how the law will affect same-sex couples who already have a legally recognized relationship:

Domestic partners

Donna Waliky and Lill Rimac met playing rugby, have been together for a decade and plan on staying together.

"We had a wedding ceremony in 2001, your typical wedding ceremony without the legality of it," Waliky said.  When New Jersey created domestic partnerships in 2004 to afford same-sex couples some legal protections, "we signed up right away," she said.

They are among 4,546 same-sex couples who have registered as domestic partners, thereby gaining a dozen protections associated with marriage.  Forming a civil union, as they plan to do, would give them all the rights and obligations -- more than 800 -- conferred by state law, but none of the 1,138 benefits or burdens that federal law applies to married couples.

David Buckel, an attorney with the gay rights organization Lambda Legal, said that for the most part, gays and lesbians considering civil unions face the same issues as straight couples contemplating marriage.  Both carry legal obligations, including responsibility for the other partner's debts and the possibility of one day having to pay alimony.

But there are a few considerations unique to same-sex couples.  Buckel said for military couples, "a civil union can potentially lead to a discharge under the 'Don't ask, don't tell' policy."  It might also complicate efforts to adopt a child in some foreign countries that allow single parents, but not same-sex couples, to adopt, he said.

Buckel warned that if there are any potential immigration issues, it is "incredibly important" to consult a lawyer before entering a civil union.

The procedure for forming a civil union is identical to getting married.  The couple go to the registrar of vital statistics in the town where either lives, bringing along a witness who can verify their identities.  They complete an application and pay $28.  Then they must wait 72 hours.  They pick up their license, take it to the public official or clergy member performing the ceremony, and file the completed paperwork attesting that they have formed a civil union.

"At that point, they're all set.  They're in a civil union," said Joe Komosinski, the state registrar of vital statistics.  Their old domestic partnership will automatically terminate.

Komosinski said the only time domestic partners must end their existing relationship is if one of them wants to form a civil union with a new partner.  Then, just as a married person must get a divorce before taking a new spouse, the domestic partnership must first be dissolved in a proceeding before a judge.

"If the same two people are entering into a civil union, they don't have to have it (their domestic partnership) terminated," Komosinski said.

Civil-union partners

When Connecticut recognized civil unions, its attorney general ruled that couples who had already formed such unions in Vermont had valid civil unions "that need not and cannot be repeated in Connecticut."

In New Jersey, it will be different.  Valid civil unions from Vermont and Connecticut will be recognized here, but if the couple wants a new civil union ceremony in the Garden State, they can have one.

Each year, roughly 1,000 married couples remarry their existing spouses.  Komosinski said some were married in other countries and all the documents are in a foreign language, while others "want to renew their vows."

Couples in civil unions will have the same opportunity.  The procedure is the same as forming a civil union, with two exceptions:  they check the box marked "reaffirmation of a civil union" and they need not wait 72 hours.  They can have the ceremony performed immediately.

Goldstein, who chairs the gay rights group Garden State Equality, said he and his partner plan to reaffirm the civil union they formed in Vermont in 2002.

"Why tempt the complications of some bureaucrat saying:  'We don't see you as civil-unioned in New Jersey records?'" Goldstein said.  "It's almost insurance for us.  We don't have to -- but why not?"

One reason to pause, Buckel said, is that couples who are civil-unioned in two states might have the "double trouble" of court proceedings in both places if they break up.

Goldstein said, "After 15 years, we're not worried about that."

Married same-sex couples

The big question -- the one that could start the next court battle -- is whether New Jersey will recognize same-sex marriages performed in other jurisdictions, and if so, as what:  marriages or civil unions?

"We're researching it," Assistant Attorney General Patrick DeAlmeida said.  "I want to get an answer before the bill becomes effective."

Stephen Hyland, a Westmont lawyer who specializes in legal problems of same-sex couples, said, "I think to be safe, a couple that was married in Canada should be civil-unioned in New Jersey."  But he said he might not give the same advice to a couple that wed in Massachusetts and moved here, because they have a stronger claim that their marriage should be given "full faith and credit."

Of all the unresolved issues, none is more contentious.

Yesterday, the state's Catholic bishops released a letter urging believers to "reach out to neighbors, legislators and the governor with the simple message:  'Preserve the definition of marriage as a union between one man and one woman.'"

Buckel said the state could have avoided a lot of problems by allowing same-sex couples to marry.

"The State of New Jersey is spending a lot of money and resources to figure this out," Buckel said.  "It's a lot more than bumps; I would call them brick walls.  Some people are going to get hurt when they hit those walls."

Robert Schwaneberg may be reached at (609) 989-0324 or rschwaneberg@starledger.com.