NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Alimony, Child Support, Child Custody, Prenuptial Agreements, Essex, Morris, Mercer, Atlantic

Recently I blogged on developments in the debate of same sex civil unions and marriage in New Jersey.  To read that entry click here.  The New Jersey Star Ledger along with other media outlets have reported that the vote on the bill in the New Jersey Senate to approve gay marriage, scheduled for Thursday, December 10, 2009, has been postponed. Instead, the bill approving gay marriage will now be put before the Assembly Judiciary Committee for debate. Opponents of the bill are calling this a retreat by supporters of the bill. To read a recent Rutgers University Eagleton Institute of Politics report on religious supporters and opponents click here.  Like the federal government, a bill must be voted on and pass by both the Assembly (House of Representatives in the Federal Government) and Senate, before it is sent to the governor for him to sign or veto. Usually if a bill does not have enough votes to pass, the Senator who introduced the bill, in this case Senators Ray Lesniak (D-Union) and Loretta Weinberg (D-Bergen), will not put it up to be voted on. In this case the Star Leger is reporting that the bill is supported publicly by only 13 Senators, with 18 publicly opposing the bill, and the remaining 9 are undecided or not stating their positions. With only a couple of weeks left in the Corzine administration, it is now or never for supporters of the same-sex marriage bill. Governor-elect Christopher Christie, who is opposed to same-sex marriage, has already stated that he will veto any same-sex marriage bill. These next couple of weeks will determine if the Garden State will allow same-sex marriage ..........stay tuned.

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If a California web designer gets his way - Til death do us part? – will mean just that. John Marcotte, who runs the comedy website Badmouth.net, is attempting to put a measure on next year’s ballot that will ban divorce in California. The effort is meant to be satirical. The thought process behind the idea is that if California can pass Proposition 8, which bans same-sex marriage, allegedly to protect the sanctity of marriage, than what prevents California from going one step further and banning divorce?   

So far Marcotte has not collected the 694,354 signatures necessary to put the proposition on the ballot, but with a grass-roots movement and use of the Internet, he may achieve his goal – although it would be highly unlikely to pass.  And even if it did pass, it would certainly be found unconstitutional if challenged in court. But the proposition does raise an interesting question – does the State have an interest in protecting the sanctity of marriage?

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In a new development, the Maine House of Representatives approved yesterday a bill to legalize same-sex marriage.  The Maine Senate approved the bill last week.  As in New Hampshire, the fate of a law legalizing such unions could now rest in the hands of the state governor, who has opposed such unions previously.  It appears unlikely that enough legislative support exists to override a governor's veto, but neither governor is expressly stating now whether either would approve such a bill.

The New England region has found strong support for same-sex marriage of late, as such unions are now legal in Massachusetts, Vermont, and Connecticut. 

In related news, the California Supreme Court could determine as early as this week whether the now infamous "Prop 8," a voter-approved ban on same-sex marriage, is constitutional.  We have previously blogged on Prop 8, found here.

Stay tuned to this blog for more updates regarding the issues regarding same-sex marriages and related issuess.

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After becoming the first state to legalize civil unions, Vermont has become the fourth state to legalize same-sex marriage. Today, both houses of the state legislature overrode the governor’s recent veto of the proposed same-sex marriage bill. Notably, it was the first state to do so via legislative vote, as same-sex marriage in Massachusetts, Connecticut and Iowa was legalized via judicial determination. 

This enormous victory for same-sex couples comes on the heels of the Iowa Supreme Court’s decision last week striking down a state law banning same-sex marriage. It remains to be seen whether New Jersey, which has legalized civil unions, will follow suit.  Governor Corzine recently indicated that he would sign a bill legalizing same-sex marriage should one reach his desk.  Stay tuned into this blog for future updates in this fast developing area of the law.

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The rapid fire developments in the area of same-sex rights continues, with word from the Gay and Lesbian Advocates and Defenders group, which successfully argued for same-sex marriage in Massachusetts, that it intends to file suit in Massachusetts seeking some federal benefits for spouses in a same-sex marriage.  The plaintiffs in the suit would be eight couples and three widowers who were each married in Massachusetts once it was legalized in 2004 and subsequently denied provision of federal benefits granted to married couples upon application for same.

While the Defense of Marriage Act (DOMA) prohibits the federal government from recognizing same-sex marriage and, by correlation, granting to same-sex spouses certain federal benefits such as Social Security survivors' payments, the group believes that the suit is warranted per its belief that the number of states permitting same-sex marriage will increase beyond Massachusetts and Connecticut.  Specifically, the suit would target only a portion of DOMA, seeking equal protection for benefits including Social Security, federal income tax, federal employees and retirees, and the issuance of passports.  

Such a suit would be the first in which plaintiffs were legally married in their state of residence and then were subsequently denied requested federal benefits. 

EDITOR'S NOTE:  The basis of the suit is the equal protection clause of the US Constitution.  It will be interesting to see the outcome of this case, however, it may be years before it is decided.        Eric S. Solotoff

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In the first ruling of its kind in the State of New Jersey, a Superior Court Judge has held that a same-sex couple legally married in another jurisdiction can obtain a divorce in this state.  While New Jersey is not one of the few states with legalized gay marriage (only Massachusetts and Connecticut currently permit same-sex marriages), it does allow couples to enter into civil unions pursuant to N.J.S.A. 37:1-36, which was enacted following the New Jersey Supreme Court's ruling in Lewis v. Harris, 908 A.2d 196 (2006), and is designed to provide same-sex couples with the same rights granted to married couples.  As blogged last month, found here, the New Jersey Civil Union Review Commission found in its final report that civil unions do not provide the same protections as marriage.   

In rendering its ruling, specifically addressing a same-sex couple legally married in Canada, the Court opined that it was acting consistently with New Jersey's strong recognition principles dating back to the 1800s.  The ruling is also significant in that it runs contrary to a State Attorney General Order declaring that New Jersey would not fully recognize same-sex marriages legally performed elsewhere, and that such marriages would be treated here as civil unions.  In fact, the Attorney General's office in this case argued that the marriage should be treated as a civil union.  The Court, however, was swayed in part by the argument that Canada might not permit one of the parties to remarry without a divorce of the current marriage and that the parties could not obtain a divorce in Canada because they were not Canadian residents.    

New Jersey joins New York as another state to recognize a same-sex marriage performed elsewhere for the purpose of divorce.  Courts in Rhode Island, Oklahoma and Texas have ruled against such recognition.  It remains to be seen whether the Attorney General's office will appeal the ruling to the New Jersey Supreme Court. 

Whether same-sex marriage in New Jersey will ever be legalized remains to be seen.  What this case does is is recognize that simply treating a same-sex divorce as a civil union dissolution could prove inequitable to the parties involved under certain circumstances, such as those in this case.

Stay tuned for more updates on this issue.  

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Just before the end of his presidency, George W. Bush signed into law the Worker, Retiree and Employer Recovery Act of 2008 (WRERA), which corrects certain portions of the Pension Protection Act of 2006 (PPA).  Under the PPA, employers were permitted, but not required, to allow non-spouse beneficiaries, including beneficiaries in a same-sex relationship, an opportunity to roll inherited retirement benefits paid as a lump-sum to an inherited IRA on a tax-free basis.  In a victory of sorts for individuals in a same-sex relationship, the WRERA now mandates that employers provide such an opportunity.  Should a beneficiary choose to take benefits in cash, rather than roll them into an IRA, the benefits will suffer a 20% tax. 

Retirement plans covered by the law include pension plans (defined benefit plans), 401(K) plans (deferred compensation plans), ESOPs, profit-sharing plans, money purchase plans, 403(b) plans and governmental 457(b) plans. 

All qualifying retirement plans must implement the non-spouse rollover provision as of January 1, 2010.  Thus, while the federal government does not recognize same-sex marriage and, as a result, protections afforded by ERISA probably do not apply, this amendment inches same-sex couples one step closer to equality under the law.

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Last month, the New Jersey Civil Union Review Commission issued its final report, which, according to the Commission, included "overwhelming evidence" that civil unions do not provide the same protections as marriage, and has even gone so far as to create economic, medical and emotional hardships for same sex couples.

The article in the Star Ledger noted that approximately 3,353 couples have entered into civil unions in New Jersey and about 1,500 complains about them have been made to Garden State Equality, which fights for same sex rights and protections. 

The report detailed how, in many cases, employers and hospitals simply do not recognize same sex rights and benefits and, in some instances, had not even heard of civil unions despite the passing of the landmark Civil Union Act less than two years ago.  Plus, employers who are self-insured under ERISA, they are not obligated to abide by the Civil Union Act when it comes to providing health benefits to same sex couples. 

Since issuance of the report, Governor Corzine stated that he would sign a same sex marriage bill should it come before him.  Whether this happens sooner rather than later is unclear and it might sooner be an issue for voters to decide upon.  Currently, same sex marriages are only legal in Massachusetts and Connecticut and the topic has been of hot discussion in California since voters rejected Proposition 8 last November.  Blog entries on those topics can be found here and here and here.

EDITOR'S NOTE:  This is a hot bottom issue.  While the Governor has said he would sign such a bill, there is no evidence that he will ever be presented with such a bill.  Moreover, even if such a bill is passed, there still will not be total equality because the federal government does not recognize same sex marriage.  As such, as ERISA is federal law, the protections it affords to spouses probably would not apply.  Similarly, the IRS probably would still not allow same sex couples to file joint tax returns.                                   ERIC S. SOLOTOFF

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Iowa's state Supreme Court is hearing oral arguments this week on a challenge to the state's ban on same-sex marriage, but a decision will likely not be forthcoming for several months.  Should the Court find the state law unconstitutional, Iowa would join Massachusetts and Connecticut as the only states with legalized same-sex marriage.  With the now infamous "Prop 8," California voters recently voted to amend the state constitution to ban same-sex marriage.  Click on the state names to find recent blog entries in this arena.  Connecticut, California and Arizona.

The lawsuit in Iowa was filed by Lambda Legal, a gay rights organization representing gay and lesbian couples, on behalf of six same-sex couples seeking to marry in the state. 

As previously discussed, New Jersey has legalized civil unions, which provide all rights granted to married couples, but does not currently permit same-sex marriage.  New Jersey's civil union law can be found at N.J.S.A. 37:1-36.

The battle for same-sex marriage is likely to continue on a state-by-state basis throughout the United States.  It will be interesting to see whether voter opinions change over time in-line with judicial opinions.

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Following up on a recent blog entry, found here, regarding the Connecticut Supreme Court's holding that same-sex couples have the right to marry, in November, 52% of California voters approved an amendment to the State Constitution banning same-sex marriage, effectively overturning a California Supreme Court decision from earlier this year.  Known as Proposition 8, the initiative sparked an expensive and controversial campaign for and against the rights of gay individuals. 

The California Supreme Court has indicated that it will determine whether the vote was constitutional, as well as the legality of same-sex marriages that have occurred since the Court's decision earlier this year, but has not suspended the ban in the interim.  Legislative approval of the measure is required because it has been challenged as a substantial revision of the State's Constitution.

Similarly, Arizona voters just approved Proposition 102, which amends the State Constitution to define marriage as between one man and one woman.

As stated in the earlier entry discussing the situation in Connecticut, New Jersey has not legalized same-sex marriage, but does permit civil unions pursuant to N.J.S.A. 37:1-36, thereby allowing individuals in civil unions all the rights granted to married couples.  This law was passed after the New Jersey Supreme Court declared in Lewis v. Harris, 908 A.2d 196 (2006), that same-sex couples are entitled to the same equal protection under the State Constitution as heterosexual couples.

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On October 10, 2008, Connecticut's Supreme Court ruled 4-3 that gay couples have the right to marry.  Connecticut is the third state behind Massachusetts and California to legalize same sex marriage.

The Court held that civil unions are not enough to protect the rights of gay couples.  In the majority opinion of Kerrigan v. Commissioner of Public Health, Justice Richard N. Palmer wrote that denying marriage to same sex couples would create separate standards.

Connecticut's Attorney General Richard Blumenthal said the ruling goes into effect October 28th.  There will be no appeal.

New Jersey has not legalized same sex marriage.  In the Supreme Court decision of Lewis v. Harris, 908 A.2d.196 (2006), the Court held that same-sex couples are entitled to the same equal protection as heterosexual couples under the state constitution.

The Lewis v. Harris court unanimously agreed that (then) current state law was unconstitutional with respect to the equal protection of same sex couples.  The court was divided as to what remedy was required.  Four justices (of seven) ruled that the legislature can either amend marriage laws or create civil unions.  Three justices (the minority) argued that the only constitutional remedy is the amendment of the state marriage law to include same-sex couples.  The majority ruling gave the New Jersey legislature 6 months to either amend (then) current marriage laws or create civil unions. 

The legislature created civil unions pursuant to N.J.S.A. 37:1-36.   New Jersey's civil union law provides individuals in civil unions all the rights granted to married couples, including the rights of hospital visitation, the ability to collect survivor benefits, and restrictions that apply to marriage licenses and those individuals currently empowered to perform marriages are authorized under the law to conduct civil unions as well.

Now that Connecticut has legalized same sex marriage, will New Jersey follow suit? 

EDITOR'S NOTE:  There remains criticism by bar groups and others that the New Jersey Civil Union statute does not do enough to protect the interests of gay couples.  Whether that will lead to further legislation remains to be seen.  

In addition, as long as the United States government does not recognize same sex marriage, same sex couples cannot file joint federal tax returns and are otherwise denied rights created by federal law.

Eric S. Solotoff 

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Keith R. McMurdy, a partner in our New York office, wrote a terrific piece on Civil Unions and Tax Implications on his Employee Benefits Blog.  There was reference in the article to New Jersey issues.

To view the article, click here.

To view his blog, click here.

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