Entries Tagged as 'civil union'

NJ Civil Unions, Federal Law and Taxes after United States v. Windsor

On June 26, 2013, the United States Supreme Court issued their opinion in United States v. Windsor.  In this case, a woman married in Canada to another woman was denied the same death (estate) tax benefits that married couples receive.  The benefits were denied under a federal law called the Defense of Marriage Act (DoMA) passed in 1996.  DoMA’s Section 3 defined a marriage for federal purposes being solely between a man and woman — hence why the federal government denied Edith Windsor the death tax benefits in her marriage. In a 5-4 ruling, the court declared that Section 3 of DoMA is unconstitutional.

New Jersey does not allow for same sex marriages but does have a civil union statute that resulted from Lewis v. Harris.  In that 2006 case, the NJ Supreme Court unanimously declared that prohibiting same sex unions violates the equal protection clause but in a 4-3 decision left it up to the legislature to determine how best to give same sex couples equal rights of married couples.  The legislature chose civil unions.  I’ve covered this topic previously here and here.

Yesterday, the Internal Revenue Service updated their policies to reflect the invalidation of DoMA Section 3 in Revenue Ruling 2013-17.  In a nutshell, the ruling mandates that legally married same sex couples must follow the same procedures as heterosexual marriages, regardless of where they live.  So if a same sex couple marries and resides in a state that does not recognize same sex marriages, they will have to file as unmarried for state taxes and married for federal — ironically, the exact opposite of how it previously worked for same sex couples in a state that did recognize their union.  Same sex married couples can also refile their taxes covering the last three years if beneficial to them.

For NJ (and other states) couples in civil unions, the ruling does not recognize a civil union (or domestic partnership) as equivalent to a marriage and thus for federal tax purposes civil union partners are not married. See the IRS’s FAQs.  While it is not explicitly stated, presumably other aspects of federal tax law will not extend to civil unions.  In a dissolution, this can impact equitable distribution of assets and liabilities (a tax free event for married couples but gift taxes may apply to civil unions) and alimony (where it may not be tax deductible for couples formerly in civil unions).

Post-Windsor, Garden State Equality filed an updated case against the state of NJ seeking a declaration that civil unions do not provide the same equality as marriage (see Garden State Equality v. Dow).  This IRS Ruling certainly helps that case, and I would expect to see amended filings shortly.

If you are seeking to dissolve your civil union, be sure to find a mediator who has expertise in this area as it is quite different from a heterosexual divorce.  Feel free to contact me with any questions.

Virginia-Vermont Civil Union Custody Dispute Back on Appeal

I have prevously reported on a case of a Vermont civil union which was dissolved, but a custody battle over a child of that civil union had taken place in two states, Vermont and Virginia, where one of the partners had moved with the child. Virginia does not recognize same sex relationships.  Federal law does not either (in the defense of marriage act), but does uphold the custody decisions of an originating state, to prevent venue shopping by parents.

In this case, courts in both Vermont and Virginia (including their Supreme Court) have upheld the right of the Vermont courts to take precedence.  The U.S. Supreme Court has declined to hear an appeal, essentially agreeing with the existing court decisions.  Now the Virginia resident, Lisa Miller, is appealing the ability of Virginia courts to enforce the order of a court in Vermont.

In January, a Vermont judge denied Miller’s latest attempt in that state to deny visitation rights to Janet Jenkins.  The judge also said Miller risked losing custody of her daughter if she continues to violate court orders. The Vermont court also rejected Jenkins’ effort to get primary custody of Isabella, but did order she get five weeks of custody in the summer.

Click here for more details.

More on Same Sex Divorce and Dissolutions

The Los Angeles Times reports on a ruling in the U.S. 9th Circuit Court of Appeals that could lead to the invalidation of the Defense of Marriage Act.  The Act, which I’ve written about previously, essentially allows states not to recognize same sex marriages performed in other states and also defines marriage for federal purposes as being only between heterosexual couples.

Judge Stephen Reinhardt of the U.S. 9th Circuit Court of Appeals ruled earlier this week that Sears — who married Levenson, a deputy federal public defender, last July — is entitled to the same spousal benefits that heterosexual couples employed by the department receive.


Reinhardt’s ruling branded the Defense of Marriage Act unconstitutional. The 9th Circuit’s chief judge, Alex Kozinski, also weighed in on the subject last month, granting benefits to the same-sex spouse of a staff attorney for the court. But he stopped short of basing that decision on constitutional grounds.

Despite the prominence of the two judges, the rulings are legally meaningless for all but the two couples because they came in the court’s administrative dispute process, rather than in lawsuit judgments.

The 9th Circuit judges ruled in their capacity as dispute-resolution officials within the federal judiciary, whose employees are prohibited from suing in federal court.


But legal analysts see the judges’ orders as an indication that the Defense of Marriage Act is unlikely to stand up to the constitutionality test if it reaches a federal court.

What this ends up meaning is unclear at this time.  For instance federal law’s Title VII does not include sexual orientation as a protected class in labor discrimination — whereas NJ’s Law Against Discrimination does — and the federal courts have not seen fit to add that protection.  But times change and so do court rulings (separate but equal was once the law of the land).  Stay tuned.

Same Sex Divorce in New Jersey

I’ve written previously about the issues in NJ about same sex divorce and dissolution.  NJ’s Attorney General’s office has taken the position that NJ courts should only grant civil union dissolutions even if the same sex couple in question was legally married in another jurisdiction.  On Friday, NJ Superior Court Judge Mary Jacobson granted a divorce in the case of Hammond vs. Hammond.

La Kia and Kinyati Hammond were married in British Columbia, Canada in 2004 (after years in a relationship) and then moved to Maryland.  In 2005, La Kia learned she had a terminal form of muscular dystrophy, was told she had two years to live, left Kinyati and moved with her daughter to NJ.  La Kia is now in a relationship with another woman and wants to be able to marry her in Canada before she dies.

Judge Jacobson found compelling the argument that authorities in Canada may not accept a dissolution of a civil union as equivalent to a divorce and thereby not allowing La Kia to be remarried.  Since La Kia is not a resident of Canada (but is a resident of NJ), she would not be able to receive a divorce in Canada.  Kinyati now lives in Delaware and did not respond to the filings.

The attorney general’s office has not decided if they will appeal the ruling.

Virginia Supreme Court rules in Civil Union Custody Case

I’ve twice reported on a case before the Virginia Supreme Court dealing with a civil union custody battle originating in Vermont. You can read the past stories here and here.

Today, the VA Supreme Court issued their ruling on the case. AP reports:

Court: Vt. ruling stands in lesbian custody case

By LARRY O’DELL – 7 hours ago

RICHMOND, Va. (AP) — Virginia’s highest court ruled Friday that the state must enforce a Vermont court order awarding child-visitation rights to a mother’s former lesbian partner.

The Virginia Supreme Court rejected Lisa Miller’s claim that a lower court improperly ignored a Virginia law and a state constitutional amendment that prohibit same-sex unions and the recognition of such arrangements from other states.

The ruling was a victory for Janet Jenkins, who has been fighting for visitation rights since the dissolution of the civil union she and Miller obtained in Vermont in 2000. In 2002, Miller gave birth to the daughter, Isabella, who now is at the center of a legal battle closely watched by national conservative and gay rights groups.

Miller renounced homosexuality and moved back to Virginia with the child after the couple split, and she has fought Jenkins’ visitation efforts. However, the Supreme Court ruled that a federal law aimed at preventing parents from crossing state lines to evade a custody ruling requires Virginia to enforce Vermont’s order.

“I’m relieved that this tug-of-war with my daughter is over,” Jenkins said in a statement released by the gay-rights group Lambda Legal. “This has been a very long four years. My daughter and I need some time to be together. She needs her other mom.”

Miller’s attorney, Mathew Staver, said his client “has not lost her courage or her resolve” and will pursue other legal options. Staver, founder of Liberty Counsel and dean of the law school at the late Rev. Jerry Falwell’s Liberty University, said he hopes to raise the issue of Virginia’s constitutional amendment banning same-sex unions in a new proceeding.

Jenkins’ attorney, Joseph R. Price, said the decision “is fully consistent with Virginia, Vermont and federal law” on child custody and visitation matters.

“More important, the decision means that Isabella will have the support of both her parents as she grows up and that gay and lesbian parents can expect that they will be treated just like any other parents in a custody dispute, regardless of their sexual orientation,” he said.

The Virginia Court of Appeals twice ruled in favor of Jenkins. Miller’s attorneys missed a deadline for appealing the first ruling to the Virginia Supreme Court, so they filed a second appeal on different grounds. The appellate court ruled that the second case raised no new issues, and the Supreme Court agreed. In 2006, the Vermont Supreme Court also ruled in favor of Jenkins.

Miller’s supporters were encouraged a brief concurring opinion written by Virginia Chief Justice Leroy R. Hassell Jr., who said he disagreed with the appeals court’s first decision but agreed the justices could not consider the merits because the appeal was filed late.

“I see that as a red flag practically begging the attorneys to go back and file again because the issues at question were not considered,” said Matt Barber, policy director for cultural issues for the conservative Concerned Women for America. “It’s a temporary setback, but it’s not over.”

An Update on an Interstate Civil Union Custody Case

I’ve previously written about some of the differences between a divorce and a dissolution of a civil union.  Back on December 8, 2006, I wrote about a case in Virginia whereby a couple entered into a civil union in Vermont.  They then had a child via artificial insemination.  The daughter, Isabella, now 6 years old, along with the birth mother Lisa, returned to Virginia (a state which does not recognize same sex unions).  Vermont granted a dissolution, primary custody to Lisa and visitation rights to her former partner Janet.  Lisa then went to court in Virginia and won an order granting her sole custody with no parental or visitation rights for Janet.

However, in 2006, a Virginia Court of Appeals reversed the lower court’s ruling, holding that federal law requires each state to respect the child custody and visitation rulings of another state so that chaos will not result from parents shopping for another state for a “better” ruling.

The case has now headed to the Virginia Supreme Court and a ruling is expected in June.

Same Sex Divorce Issues

I’ve discussed some issues in civil union dissolutions in previous blog posts (here and here).  Today, the Washington Post has an article which talks about other elements of civil union dissolution (and same sex marriage divorce in Massachussets, the only state to formally call it marriage).  The article presents the case of two divorcing lesbians in MA who each gave birth to a child from the same sperm donor.

While the parties are litigating, a family court in Boston has come up with a Solomonic ruling, saying that each of the women can spend half the week alone in the family home with the children.

One same sex marriage divorcing male in MA noted:

“I wasn’t aware of how messy things were going to get.  The legal maneuvering we had to go through was enormous, and it was difficult to find attorneys who were willing to handle the issue because there just aren’t that many lawyers familiar enough with the law and how it affects a gay divorce.”

Since Federal law does not recognize marriage between two people of the same sex, distributing assets (normally a tax free event) is taxable.

Lawyers have found no shortage of creative solutions around the tax codes by swapping assets, setting up irrevocable trusts and parceling out years’ worth of payments in amounts that meet the tax threshold.

I’ve talked about how the length of a marriage or civil union is determined in a same sex context and the article talks about that too:

Massachusetts is an equitable-distribution state, and a major factor in determining the distribution of assets is the duration of the marriage. But gay couples are fighting that in court, contending they would have been married longer if it had been allowed. The argument is gaining ground with judges who have been willing in same-sex divorce cases to take account of the entire length of the relationship in deciding on division of assets.

“If a couple has been together for 25 years in Massachusetts, their assets would be divided 50-50,” said Elizabeth Zeldin, who has handled several same-sex divorces. “But a same-sex couple has only been married a maximum of three years, so do you treat it as a three-year marriage or a 25-year marriage? A lot of judges are now saying: Treat it as a long-term marriage.”

Same Sex Divorce In RI

A same sex couple who got married in Massachussetts, then moved to Rhode Island, had their petition for a divorce in Rhode Island’s courts denied by their Supreme Court.  In answering the question, “May the Family Court properly recognize, for the purpose of entertaining a divorce petition, the marriage of two persons of the same sex who were purportedly married in another state?”  In a 3-2 decision, the RI Supreme Court decided that “well-established principles of statutory construction would lead us ineluctably to conclude that the General Assembly has not granted the Family Court the power to grant a divorce in the situation described in the certified question…the role of the judicial branch is not to make policy, but simply to determine the legislative intent as expressed in the statutes enacted by the General Assembly. In our judgment, when the General Assembly accorded the Family Court the power to grant divorces from ‘the bond of marriage,’ it had in mind only marriages between people of different sexes.”

Civil Unions and Irreconcilable Differences

There seems to be some confusion at this point whether the Irreconcilable Differences (“ID”) cause of action enacted for divorce in marriages would also apply to dissolution of Civil Unions.  The ID bill was introduced before the Lewis v. Harris decision came down and before the legislature considered the Civil Unions bill.  In essence, the two bills crossed during their passage.  Obviously, under Lewis the court directed the government to make same sex unions legally equal (at least under state law) to marriage.  The Governor in his statement accompany the signing of the ID bill said he was assured this would apply to civil unions.  It seems that the legislature will need to enact a techincal correction or the courts will have to enforce this for civil unions.  If it’s the former, they have a bit of time to enact it since civil unions will not come into effect until mid February and the ID has a six month tail.

More on Civil Unions

The Civil Unions law will become the effective in NJ in February 2007.  As I mentioned in an earlier post,  there are a number of differences that make civil unions not quite equal to marriage.

One was the differences in federal tax law.  The Defense of Marriage Act (1996) defines marriage as between a man and woman for purposes of all federal benefits, which includes the tax code.  This means that all transfers pursuant to a dissolution of a civil union would be treated as a gift and thus taxable to the recipient (and not deductible to the giver).  I had talked about the tax aspects of alimony, but there are two other areas that could be problematic.  One is equitable distribution.  Again, splitting up the common assets accrued during the civil union would be considered a gift to the recipient and thus taxable.  Another area is that splitting a retirement account earned during a civil union under a Qualified Domestic Relations Order (QDRO) may not be possible, since that is a federal program.  Again, many of these areas are developing areas of law.

Another area was would another state recognize the civil union or the dissolution?  In Rhode Island, a state that does not recognize same sex marriage or any type of same sex union/partnership, a same sex couple who were married in Massachussets has filed for divorce in RI.  The family court asked the state supreme court for an opinion on the case, to see if RI had jurisdiction to do this.  The supreme court asked the lower court for clarification on some issues.  This could be an interesting case.