Same-sex marriage has been legal in New Jersey since a groundbreaking ruling in October 2013 paved the way for marriage equality. But what about same-sex divorce? As family law attorney Bari Weinberger points out in her new article for the New Jersey Law Journal, some lingering questions and legally ambiguous situations may face some same-sex couples who decide to split up.
The potential problem, according to Weinberger, affects gay couples who entered into a NJ civil union at some point in the past, and then decided to get married after November. Acccording to current New Jersey Department of Health rules, same-sex couples in civil unions or domestic partnerships are not required to terminate these legal relationships first before getting married in New Jersey, as long as they are marrying each other and not a new partner.
What does this mean for the couple? Because a marriage between civil union partners does not operate to terminate the prior legal relationship, the couple actually ends up in two types of legal relationships simultaneously: a NJ marriage and a NJ civil union. If this couple then decides to split up, they will presumably need to terminate both relationships.
And this may not be such a simple thing to do. As Weinberger writes in the Law Journal:
While the process of terminating a civil union or domestic partnership is almost identical to the process of divorce, there is an important difference in the grounds currently available. Divorcing couples can allege “irreconcilable differences,” a no-fault ground requiring only a breakdown in the marriage lasting six months or longer, without a reasonable prospect of reconciliation. By contrast, the only no-fault ground available to couples in civil unions or domestic partnerships is separation, which requires couples to live apart for at least 18 months.
Weinberger does note that legislation in the future may clear this up and streamline the process for couples. In other states, such as Vermont, where same-sex marriage has been legal for a number of years, the state automatically dissolves the civil union when the partners get their marriage license, for example. Perhaps a similar law will someday be adapted in New Jersey. We’ll keep you posted!