Four states (Colorado, Hawaii, Illinois, and New Jersey) currently grant civil unions. Though the precise definition may vary from state to state, a civil union is generally defined as a legal relationship between two persons of the same sex that grants some or all of the same rights associated with marriage.
The rights granted to civil union couples are limited to state rights, however, because states lack the power to grant federal rights. Thus, the more than 1100 federal rights available to married couples (including same-sex married couples) are denied to civil union couples.*
As of October 21, 2013, both same-sex marriages and civil unions are legal in New Jersey. As a same-sex marriage grants a couple both state and federal rights, while a civil union grants only state rights, same-sex New Jersey couples no longer have any reason to enter civil unions.
The ruling that legalized same-sex marriage in the state does not address the conversion of existing civil unions to same-sex marriages, however. A bill providing for the automatic conversion of existing New Jersey civil unions to same-sex marriages is predicted to pass in January 2014, but unless and until that occurs, New Jersey civil union couples wishing to terminate their legal relationships will need to go through the process of dissolving their civil unions.
“Dissolution,” rather than “divorce,” is the term used to denote the termination of a civil union. The process is essentially the same for both dissolution and divorce, but there can be important differences.
Issues that can make civil union dissolution more problematic than divorce include 1) differences in the availability of grounds, 2) residency challenges, and 3) federal tax ramifications. Each of these will be discussed separately, below.
Although New Jersey’s civil union law clearly states that “the dissolution of civil unions shall follow the same procedures and be subject to the same substantive rights and obligations that are involved in the dissolution of marriage,” the grounds available to civil union couples seeking a dissolution differ from those available to married couples seeking a divorce.
Nine grounds are available for divorce in New Jersey, while only seven are available for civil union dissolution. As discussed below, the unavailability to New Jersey civil union couples of the ground of irreconcilable differences (also known as irretrievable breakdown) is the disparity that is most problematic. **
Both married and civil union couples may file for termination of their legal relationships in New Jersey on the following grounds:
The following grounds are available to New Jersey married couples, but not to New Jersey civil union couples:
The following grounds are available to New Jersey civil union couples, but not to New Jersey married couples:
Voluntary sexual intercourse between a person who is in a civil union and an individual other than the person’s partner in a civil union couple
As shown above, most of the grounds available to New Jersey married couples are also available to civil union couples. Two of the grounds available to only one or the other (adultery versus voluntary sexual intercourse) are the same in all essential respects, so that the difference is one of terminology rather than substance.
The deviant sexual conduct ground available only to married couples has no counterpart for civil union couples. No case law has been found, however, to indicate that the denial of this particular ground to civil union couples has been made an issue in any dissolution case.
The one difference most worthy of note is that of irreconcilable differences. This ground is available only to married couples in New Jersey. As discussed below, the unavailability of this ground to civil union couples can make the termination of a New Jersey civil union far more difficult than the termination of a New Jersey marriage.
In the past, grounds for divorce were exclusively fault-based. A party to a divorce was required to demonstrate fault, such as extreme cruelty or adultery, on the part of his or her spouse in order to obtain a divorce. In time, state laws were liberalized and so-called no-fault divorces were allowed. This gave parties the right to end their marriages without the burden and embarrassment of revealing the intimate details of marital misconduct in open court.
New Jersey’s original no-fault divorce, enacted in 1971, carried with it an added requirement, however. A no-fault divorce could not be filed until the parties had lived apart for 18 consecutive months.
Because the 18-month separation unnecessarily prolonged marriages that were no longer viable and was often difficult or impossible for couples to afford, the legislature further expanded the right of married persons to divorce, in 2007, by allowing the more relaxed showing of irreconcilable differences.
To establish irreconcilable differences, a party need only show that there was a breakdown in the marriage that cannot be repaired and that the breakdown occurred at least six months before the complaint for divorce was filed. The parties need not be separated for any period of time to file on grounds of irreconcilable differences.
Thus, unless a New Jersey civil-union couple wishes to file for dissolution on any of the fault grounds listed above, the couple will need to voluntarily separate for 18 months before a petition may be filed. This limitation on the grounds available for civil-union dissolution creates expense and inconvenience far in excess of that involved in divorce.
Another distinction between divorce and civil union dissolution relates to the residency requirements for filing these actions. Though states require plaintiffs in a divorce action to reside in the state in which they file, this is rarely a problem for heterosexual married couples, as all 50 states allow their residents to file for divorce from heterosexual marriages.
It does pose difficulties for same-sex married couples, though, if neither spouse lives in a state that grants same-sex divorce.*** A similar problem exists for civil union couples wishing to file for dissolution. As is the case with respect to same-sex divorce, most states will not perform civil union dissolutions.
Colorado and Illinois will allow the dissolution of a civil union even if neither party is a current resident, but only if the civil union was acquired in the state. If the civil union was acquired elsewhere, a couple petitioning for dissolution must meet the same residency requirements imposed on couples seeking a divorce. On the other hand, both New Jersey and Hawaii require at least one party to meet the state’s residency requirements before a petition for dissolution may be filed, even if the civil union was acquired in the state.
In addition to the four states that grant civil unions, many of the states that grant same-sex divorces will also grant civil union dissolutions, as long as their residency requirements are met. Whether the relationship is a same-sex marriage or a civil union, however, the need to establish residency in one of the states that will dissolve either of these relationships remains a challenge for same-sex couples.
Among the more than 1100 federal rights granted exclusively to married persons are tax benefits that accrue to spouses upon divorce. These include the deductibility of alimony payments, the favorable tax treatment resulting from asset transfers made in the course of an equitable distribution, and social security benefits available only to married persons.
When a couple divorces, assets are transferred from one spouse to another without tax consequences. But, the same sort of transfer will be a taxable event for a civil union couple obtaining a dissolution.
Likewise, the usual tax consequences of alimony payments will not apply to civil union couples. Alimony is deductible to the payor when a couple was married, but a civil union partner making alimony payments will be denied this deduction.
The same sort of issue arises with respect to social security benefits that are granted only to married spouses. The right of an ex-spouse to collect a percentage of his or her former spouse’s social security if the couple was married for ten years or more will be denied to former partners of a civil union.
As stated above, New Jersey’s recent legalization of same-sex marriage has eliminated the need for New Jersey couples to form civil unions. Though the new law does not provide for the automatic conversion of existing civil unions to same-sex marriages, the legislature is expected to pass a bill in January 2014 that will establish this automatic conversion.
For New Jersey couples wishing to dissolve their existing civil unions, holding off until January 2014, when those civil unions will likely be converted to same-sex marriages, can result in significant advantages for these couples.
Once the unions have converted to marriages, irreconcilable differences will be available as a ground for dissolution, relieving these couples of proving fault or separating for 18 consecutive months in order to terminate their relationships.
Likewise, as the dissolution will be of a marriage rather than of a civil union, all the federal tax benefits available only to married partners will immediately become available to these couples.
* For a discussion of federal rights available to same-sex married couples following the recent DOMA decision, see The DOMA Decision: What It Means for Legally-married Same-sex Couples.
** This disparity does not occur in the other three states that grant civil unions. Colorado, Illinois, and Hawaii provide for the dissolution of civil unions and marriages on identical grounds, including irreconcilable differences or irretrievable breakdown.