Fitting a Square Peg into a Round Hole

Understanding the Nuances of Family Law with Cases Involving LGBTQ Issues (A Multi-Part Series) - Part I

It was not until the United States Supreme Court in 2015, decided the matter of Obergefell v. Hodges, establishing that the fundamental right to marry is guaranteed to same-sex couples, thereby legalizing marriages between same-sex couples in the United States. 

The status of a relationship has a significant impact on the consequences of the substantive outcome of your case. The law is fairly well established concerning different sex couples when it comes to matters of Equitable Distribution, Support, and Custody and Parenting Time. However, in dealing with similar issues with same-sex couples, where the right to marry is fairly new, the body of law is lacking. In attempting to come up with a remedy to adequately address these particular issues, we may be faced with looking outside the established law.  Essentially, we are left, trying to fit a square peg into a round hole. 

The Domestic Partnership Act (“DPA”) took effect in New Jersey on July 10, 2004. Pursuant to the DPA, only certain rights and benefits are available to individuals participating in a Domestic Partnership. In the case of Lewis v. Harris, which was decided by the New Jersey Supreme Court in 2006, the Court reviewed and summarized the various rights afforded to married couples but not domestic partners, and specifically stated that “there is no statutory mechanism for post-relationship support of a domestic partnership on termination of the partnership.” Also, the right to seek an obligatory equitable distribution of property acquired during the domestic partnership is not one of the certain benefits afforded to a domestic partner seeking to terminate the domestic partnership. However, the DPA makes it clear that “the Court shall in no event be required to effect an equitable distribution of property, either real or personal, which was legally or beneficially acquired by both domestic partners or either domestic partner during the domestic Partnership.”

Between 2004 and 2012, same-sex couples were afforded the right to enter into marriage in five separate states. Those states included: 

  • Massachusetts (2004);
  • Connecticut (2008);
  • Iowa (2009);
  • Vermont (2009); and
  • New Hampshire (2010)

Additionally, the District of Columbia legalized the right for same-sex marriage in 2009. Between 2000 and 2012, there were also 10 countries that afforded same-sex couples the right to marry, including:

  • The Netherlands (2000);
  • Belgium (2003);
  • Spain (2005);
  • Canada (2005);
  • South Africa (2006);
  • Norway (2008);
  • Sweden (2009);
  • Portugal (2010);
  • Iceland (2010); and
  • Argentina (2010)

On February 19, 2007, the Civil Union Act (“CUA”) took effect in New Jersey as a result of the Lewis v. Harris decision (discussed above) which mandated that same-sex couples be afforded the same rights and obligations of marriage. Pursuant to the CUA, same-sex couples were authorized to enter into state-recognized civil unions with all of the rights and obligations afforded to married couples under state law. Specifically, couples entering into civil unions enjoyed all of the same benefits, protections, and responsibilities under state law, whether derived from statute, administrative or court rule, public policy, common law, or any other source of civil laws as was granted to spouses in a marriage. Furthermore, the dissolution of civil unions was mandated to follow the same procedures and was subject to the same substantive rights and obligations that were involved in the dissolution of marriage. These benefits and rights included the entitlement to alimony and the equitable distribution of the parties’ assets and liabilities acquired during the course of the civil union.

In October of 2013, the New Jersey Supreme Court rejected the state’s motion to stay a motion for summary judgement in favor of marriage equality, resulting in the state’s withdrawal of its appeal and the trial court judgment granted same-sex couples the right to enter into marriage in New Jersey. 

There are many issues for same-sex couples whose relationships predate legalized marriage, civil unions, or domestic partnerships.  The date of a marriage has a significant impact on the financial outcome of a case. To simply apply the then-existing laws (many of which were created for couples of the opposite sex) leaves same-sex couples at a substantial disadvantage. Understanding your rights, and the intricacies in applying the law in cases with same-sex couples, is the best way to determine a fair resolution of your matter. Contact the experienced family law attorneys at Cohn Lifland Pearlman Hermann & Knopf, LLP for more information. 

The 1st blog of each month, for the next several months will continue to address the complexities of the dissolution of same-sex relationships.