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Home Page > Family and Relationships > Civil Union and Domestic Partnership

New Jersey Civil Unions— Some Complications of the New Status

 

What is a civil union?

Civil union is a term for a type of family unit that has recently become recognized under New Jersey law and applies only to same-sex couples. Civil unions became law in New Jersey after several gay couples went to court seeking to get married. The New Jersey Supreme Court held that gay couples must be given all of the same rights, responsibilities, and obligations that straight couples receive when they enter a marriage. So, the Legislature passed a law that allows same-sex couples to enter a civil union.

What rights do civil union couples enjoy?

All of the laws, statutes, rules, and regulations that apply to married couples apply equally to civil unions. Some of the specific rights that are mentioned in the civil union law include:

  • The right for either individual or both to change names
  • The right to hold the title to property (own property) as tenants by the entireties (in the same way that married couples own property together)
  • The right of both individual members of the civil union to be considered the legal parents of any child born during a civil union
  • The right to have New Jersey tax laws apply to civil union partners in the same way as married spouses. This refers to probate tax law (laws dealing with taxes on inherited money), property tax, and state income tax.

The civil union law makes it clear that all of New Jersey’s divorce laws, divorce statutes, court rules, and case law on divorce will apply to the “dissolution” of civil unions. The civil union law states: “[t]he laws of domestic relations, including annulment, premarital agreements, separation, divorce, child custody and support, property division and maintenance, and post-relationship spousal support, shall apply to the parties to a civil union.”

What happens to domestic partnerships now?

Before the new civil union law, New Jersey had a domestic partnership law, which provided fewer rights and benefits than the civil union law. The civil union law has replaced the domestic partnership law for most gay couples. Domestic partnership is now available only to seniors—gay or straight couples where both partners are over the age of 62.

Current domestic partners have the choice either to remain in a domestic partnership or to enter into a civil union with the same partner. If a couple chooses to enter a civil union, the domestic partnership automatically ends. There is no need to terminate the domestic partnership before entering a civil union with the same partner. Some have called this a “relationship upgrade.”

Does the federal government recognize New Jersey civil unions?

The federal government has passed a law that weakens New Jersey’s effort to give rights to same-sex couples and their families. The Defense of Marriage Act (DOMA) states that the federal government will only recognize a marriage between one man and one woman. DOMA also grants each state the right to refuse to accept another state’s recognition of same-sex couples as married couples. New Jersey does not use the word “marriage” for same-sex couples, and the federal government has no laws regarding a family status of “civil union.” These differences have led to inconsistent application of DOMA to civil union couples.

Do other states recognize New Jersey civil unions?

Because DOMA also grants each state the right to refuse to accept another state’s recognition of same-sex couples as married couples, sometimes a state will interfere with the rights of civil union couples, and sometimes it will not. However, most states do not recognize civil unions. If you are a member of a civil union and you are traveling or moving to another state, it may be helpful to find out whether or not the laws of that state recognize civil unions before you leave.

Can I change my name when I enter a civil union?

Either partner entering a civil union may change his or her last name, or both may change their names without the need for a court order. Some, but not all, federal agencies have read DOMA to prohibit recognizing civil union name changes. If you choose to change your name when you enter a civil union, you must get your government-issued identification updated. Below is a list of each document and a statement about whether the name change will be recognized. There is also an Internet address for verification of that agency’s policy. Individual workers at each local agency office may not be aware of the agency’s policy to recognize a civil union name change. To help ensure that your name change is recognized, you should bring a copy of the agency policy verification with you to the local office. You may print a copy of the verification policy for the Social Security Administration, the Department of Motor Vehicles, and the Department of State from the Internet addresses noted below.

  • Social Security Card—Yes, will change name with Civil Union Certificate (verification: SSA POMS §PR 02705.33).

  • Driver’s License—Yes, will change name with Civil Union Certificate (verification: NJ MVC 6-Point ID Brochure). There have been reports of several local Motor Vehicle offices refusing to allow both partners to use the same hyphenated last name. Agency workers mistakenly thought that the law required that the “maiden” name or original surname must appear before the hyphenated name change based on marriage or civil union. New Jersey law allows anyone entering a marriage or civil union to change his or her name to any surname. If you encounter such difficulties, you should ask the local Motor Vehicle office to contact the Motor Vehicle Commission in Trenton for clarification. Or, you can bring a copy of the testimony of Robert Grill, Director of Operations for the NJ Motor Vehicle Commission, before the Civil Union Review Commission on March 19, 2008, addressing the policy of MVC to accept name changes pursuant to Civil Union Certificates in the manner requested by the civil union partners. (Testimony: CU Name Change (from the State of New Jersey Division of Civil Rights))
  • Passport—Yes, will change name based on Civil Union Certificate

    (US Dept of State - 7 FAM 1300 Appendix C). The policy of the United States Department of State on name changes pursuant to a civil union has changed. A policy that was in effect until 2008 denied use of a name that has been changed pursuant to a same-sex marriage, civil union, or domestic partnership. In response to a federal legal challenge, the Department of State agreed to modify its own regulations. Without recognizing the validity of such relationships, the Department of State now recognizes state laws as to sources of name changes. So, name changes legally recognized within one’s home state will be recognized by the Department of State. An application for a new or renewed passport with the changed name requires verification of name change on state ID (such as driver’s license) as well as the Civil Union Certificate.

Do I have to adopt a child born to my partner during a civil union in order to be considered that child’s legal parent?

The civil union law states that a child born during a civil union will be automatically considered to be the child of both partners. The birth certificate issued for a child born during a civil union will have the names of the biological parent and his or her civil union partner.

However, a New Jersey birth certificate for a child born during a civil union will not necessarily be helpful in other states or for federal purposes. If that child needs medical treatment while the family is out of state visiting relatives, the health care provider may not recognize the non-birth parent for consent to treatment. Similarly, if the non-birth parent becomes disabled, the Social Security Administration may refuse to provide benefits to the child. A court order is more legally binding on other states and the federal government than a birth certificate alone. The non-biological parent should seek either a second-parent adoption or an order of parentage from the court to obtain a clearly defined parent-child relationship that other states and the federal government must recognize. Note that, while orders of parentage cost less in time and expense than orders of adoption, jurisdictions that have either statutory or constitutional DOMAs may be more inclined to recognize orders of adoption than orders of parentage. The order of parentage is more likely to be viewed as a non-recognized benefit stemming from a foreign state’s recognition of a same-sex relationship.

Will entering a civil union affect military service or foreign adoptions?

Entering into a civil union is a legal procedure. Once a person enters into a civil union he or she cannot deny having done so. Because civil unions only apply to same-sex couples in New Jersey, anyone who enters into a civil union is publicly coming out as gay or lesbian. Entering into a civil union is a violation of the “Don’t Ask, Don’t Tell” policy for members of the military. For that reason, entering into a civil union may be a basis for dishonorable discharge. Likewise, couples who have entered into a civil union and then seek an international adoption may be denied, as many foreign countries do not allow adoptions by lesbian or gay prospective parents.

Will entering a civil union affect public benefits?

Couples who receive benefits, such as Medicaid and TANF, must be aware that local regulations may count the income and assets of a civil union partner, which may result in the termination of benefits. On the other hand, those same agencies will not recognize the civil union couple for some other purposes that would benefit the couple, such as determining whether a community spouse allowance will be provided when one civil union partner is receiving Medicaid for nursing home care.

This article appeared in the May 2008 edition of Looking Out for Your Legal Rights®.

This information last reviewed 3/8/09.

 

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