It cannot be denied that the dissolution of formalized same-sex relationships is new territory for legislators, courts, attorneys and, most importantly, litigants. With the laws rapidly changing, many attorneys and courts are “learning as they go”, almost counting on each other to advise what the relevant law and procedure is in a given situation. For instance, New Jersey does not yet have legalized same-sex marriage, but since 2006 it has had legalized civil unions. Prior to the enactment of the civil union law, same-sex couples could register for a domestic partnership, many of which still exist today and carry very different rights and obligations from that of a civil union. In fact, a pending case in New Jersey will be one of the first to test the United States Supreme Court’s recent ruling striking down the Defense of Marriage Act (DOMA) and its related decision on same-sex marriage.
Following the Supreme Court’s recent historic decisions, which caused an immediate and significant impact on several areas of law (including, but not limited to, family law, trusts and estates law, tax law, employment law, and the like), a new article from the Today show website explores this issue. One person quoted estimated that the cost of a same-sex dissolution may be double that of a heterosexual divorce, or even triple if children are involved. Our family law department has successfully handled several civil union dissolutions and domestic partnership terminations, so any additional cost concern is not an issue, but one can understand this potential minefield.
Another discussed by the article is that of the “reality” of a relationship versus the “legality” of a relationship. For instance, many same-sex couples may have been in a committed relationship for many years prior to entering into a civil union after the New Jersey law’s enactment in 2006. What happens to any assets accumulated prior to the entry of the civil union? What about support? Many couples are finding out the hard way, as courts will only address that within the term of the formalized relationship itself, without consideration of the prior years. To that end, New Jersey case law addressing a heterosexual relationship discusses the termination of any rights between a couple predating the date of marriage. In a same-sex relationship, however, is there a lack of equity when the relationship could not previously have been similarly formalized?
The article is also interesting in its discussion of the additional cost associated with where the divorce may be granted as compared to where it was obtained. Many states without legalized same-sex marriage are unwilling to grant a divorce to a same-sex couple where the marriage occurred in a state where it is legal. New Jersey has granted such divorces in recent years.
This area of the law is rapidly changing and it is critical to have quality legal representation to take you through this process in a knowledgeable, efficient and affordable manner.
Robert Epstein is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or firstname.lastname@example.org.