Obergefell v. Hodges
On June 26, 2015, same-sex marriage became legal in every state when the United States Supreme Court decided Obergefell v. Hodges. In Obergefell, the Court held that the right to marry is a fundamental right guaranteed to every American under the due process and equal protection clauses of the Fourteenth Amendment. Although same-sex marriage is now available in every state, some same-sex couples have chosen to remain in civil unions. Those who seek to dissolve their civil union must be aware of the differences in their rights versus those who are seeking to divorce a marriage.
New Jersey Parentage Act
The legal recognition of same-sex families is an evolving issue. Under the New Jersey Parentage Act, husbands are presumed to be the biological father of children born to their wives during marriage. Now that same-sex marriage is legal in New Jersey, many have argued that this presumed parenthood should extend to same-sex partners over children of whom their same-sex spouse is the biological parent. However, the law remains in flux, as the statute appears on its face to be gender specific.
Dissolving a Civil Union
There are several impediments to dissolving a civil union that do not exist for divorcing spouses in a marriage. First, if a couple that entered into a civil union moves to another state where civil unions are not recognized, they cannot dissolve their union in that state. This poses a particular inconvenience for partners who wish to marry or enter into a union with a new partner, since the existence of a civil union is an impediment to entering into a new civil union or marriage.
In addition to the geographical impracticalities of dissolving a civil union, under current law, partners in a civil union are deprived of significant federal benefits offered to married partners because the federal government does not recognize civil unions. These benefits denied to civil union partners include family and medical leave; Medicare; immigration matters; military and veteran’s affairs; filing a joint federal tax return; and participation in a Survivor Benefit Plan. Unlike divorced spouses, former partners of a dissolved civil union are not eligible to receive their former partner’s Social Security benefits. In addition, while a divorced spouse who is ordered to pay alimony may deduct his or her alimony payments from his or her federal income tax return, a former partner to a now-dissolved civil union cannot claim that same deduction. Unless the civil union is dissolved and the partners subsequently enter into a marriage, dissolving partners to a civil union will continue to be deprived of these benefits.
Marriage Equality and Presumed Parenthood
A legal parent is a person who is legally-recognized as such and has the legal authority to participate in the major decisions affecting a child’s overall welfare. A legal parent could be a biological parent, whereby parenthood was established by conception, or an adoptive parent, whereby parenthood was established by a legal permission of a court. Under New Jersey’s Parentage Act, a man is presumed to be the biological father of a child born to the woman he is married to. In at least one New Jersey trial court case, In re Parentage of Child of Robinson, a same-sex partner was entitled to the statutory presumption of parenthood afforded to husbands under the language of the New Jersey Parentage Act. However, until it is specified by the legislature that the New Jersey Parentage Act is gender neutral, the non-biological parent in a same-sex marriage should petition the courts for a Second Parent Adoption. This adoption process is usually pretty brief because at least one biological parent (the same-sex spouse who is also the biological parent of the child born during marriage) is usually consenting to the adoption.
Second Parent Adoption
A second-parent adoption is another term used for “stepparent adoption.” It is the legal act that allows a non-biological parent to adopt his or her partner’s biological child without terminating the biological parent’s legal status as a parent. Many same-sex partners use this process because, as a matter of biology, they cannot both be the biological parent of a child. A stepparent adoption is initiated by filing a complaint. After the complaint is filed, and the court finds that it has jurisdiction over the matter, it will order an investigation and agency report. The investigation and report are aimed at evaluating whether the stepparent has the capacity to meet the child’s physical and emotional needs, and whether it is overall in the child’s best interests for the adoption to be processed. The court will also schedule a preliminary hearing 2-3 months from the date of the complaint, and will order that a search of the stepparent’s criminal and domestic violence history take place within 30 days of the preliminary hearing. Within 9 months of the preliminary hearing, the court will schedule a final hearing to put through the adoption, provided no issues arise in the process leading up to that point.
Garden State Equality v. Dow
Same sex marriage is now recognized in New Jersey as a result of Garden State Equality v. Dow, 2013 N.J. Super. LEXIS 169 (Law Div. Sep. 27, 2013), stay denied, 433 N.J. Super. 347 (Law Div. 2013), stay denied, 216 N.J. 314 (2013). Garden State Equality, citing United States v. Windsor, held that same sex couples must be afforded the full rights and equal benefits enjoyed by heterosexual married couples.
With equal rights, it is important that same sex couples understand the rights and obligations including, but not limited to, alimony, equitable distribution of assets/liabilities, custody/parenting time, child support, health/life insurance and counsel fees.
Our Family Law Team is also experienced in representing same sex couples with the dissolution of a Civil Union or Termination of a Domestic Partnership.
We also encourage you to check out our blog where our talented team shares information about the latest developments in this area of law. Browse our list of family law attorneys to assist you with same sex marriage services. You can contact us to learn more about our LGBT services or call 1.(732) 726-6236 today.