Same-sex couples first became legally entitled to marry on October 21, 2013 after a New Jersey Superior Court case found that New Jersey’s marriage laws violated the rights of same sex couples by denying equal protection of the law under New Jersey’s State Constitution. After resistance from the state, the Supreme Court refused the state’s request to stay the trial court’s decision, and this in turn ended the denial of marriage rights to same sex couples in the state.
On June 26, 2015, history was made when the Supreme Court of the United States ruled in the landmark case, Obergefell v. Hodges, that states cannot prevent same sex couples from marrying and they must recognize their unions — essentially finding that states were infringing on constitutional rights of due process and equal protection — by banning, and refusing to — recognize same-sex marriages legally entered into in another state. The Supreme Court decision did not alter the state law in New Jersey, but it allowed those married here to move out of state and still have their marriage acknowledged legally.
LGBT families are now enjoying the benefits of equality in our country and in New Jersey. Since Obergefell, many of the rights afforded to legally married couples of the opposite sex are now available to the LGBT community including spousal benefits, inheritance rights, spousal testimonial privilege, and medical decision-making power. And while times are exciting for the LGBT community, it is always wise to know the latest developments regarding LGBT Divorce and Dissolution, as the laws in these fields are complex and subject to change.
Since New Jersey legalized same sex marriage in 2013, those couples who desire to end their marriage must file a Complaint for divorce and engage in the divorce process that is nearly identical to opposite sex couples. Among the issues that must be addressed are: determining alimony and the equitable division of assets. Same sex couples who also have children together, typically either through natural birth or adoption, must consider upon divorce, child custody and child support. Indeed, many of the same issues opposite sex couples face are also present for same sex couples when filing for divorce.
Civil Unions and Domestic Partnerships are also recognized in New Jersey, adding an additional layer of complexity to the dissolution process for same-sex couples.
Civil unions are a legal relationship between two persons of the same sex that grant some, or all, of the same rights as those associated with marriage. Civil Unions only grant state rights, leaving out the over 1000 federal rights enjoyed by married couples. In order to dissolve a Civil Union, at least one partner must be a resident of New Jersey for one year before filing in Superior Court. Civil Union dissolution can be more troublesome due to tax issues and relocation to a state that does not recognize civil unions. Complaints for dissolution are filed in Superior Court, and upon termination the partners would be given the same rights and remedies as married couples including equitable distribution of assets and a form of alimony.
Domestic Partnerships do not afford all of the same rights as a civil union or marriage. No persons under the age of 62 may enter into a new domestic partnership after 2007, since the Civil Union Act became effective in New Jersey. Domestic Partnerships are still legally recognized unless they are dissolved through court procedures or if a couple decides to enter into a civil union. Furthermore, if a Domestic Partnership is dissolved, the partners will no longer have any obligations to each other, and spousal support is therefore not appropriate. Also, equitable distribution is not required under the Act, and a Court does not have the power to order it.
The law surrounding LGBT unions is intricate and subject to ever-changing dynamics. At Arons & Solomon, our Attorneys and Mediators are dedicated to staying abreast of the latest trends in LGBT issues in the context of family law and divorce. Please call us at (201) 487-1199 or online at www.AronsSolomon.com to speak with one of our skilled Attorneys or Mediators.