the m-word

How New Jersey’s Gays Get F’d When They Try to Divorce

It’s not just that New Jersey’s gays want full marriage rights. It’s that they also want full divorce rights. Because as if ending a marriage weren’t difficult enough with all that squabbling over stock portfolios, child custody, and the house on Martha’s Vineyard, splitting up a “civil union” adds a whole new level of legal grey areas.

That’s because judges, who are charged with mitigating the “dissolution” (and not “divorce”) of civil unions, don’t always agree on whether common divorce laws should be applied, or whether a different standard should. But don’t (necessarily) blame judges; it’s not like they’ve got much precedent to go on, with just three years of legal civil unions in New Jersey. Relays the Star-Ledger:

Lawyers familiar with the issue also say it’s harder to divvy up assets or assign alimony because there’s virtually no case precedent for ending civil unions and divorce precedents are not always applied to dissolutions. Sorting out the unions then can take longer and cost clients more than it would if they were ending a traditional marriage.

“If there’s some question, for example, about equitable distribution or alimony or some other aspect of getting a divorce, the cases that have determined these types of things in New Jersey, in which the judges rely on and the attorneys rely on for making these arguments, appear to apply only to marriage,” Hyland said. “But they really apply to marriage and civil unions.”

In the absence of legal gay marriage in New Jersey, Hyland said, civil unions were supposed to be the same as marriage without calling them that.

Which means even the attorneys handling the cases sometimes don’t know what strategy to take up.

Lawyers say the legal confusion surrounding civil unions — and how to end them — has not abated in the nearly three years since the law was established. Some say the mix-up comes from the fact that different language is used to describe marriages/divorces and civil unions/dissolutions.

Hyland says some lawyers are not aware that divorce law is supposed to apply to civil unions, and he sometimes receives calls from family lawyers asking him for advice on how to litigate civil union breakups.

Civil union law is further complicated in New Jersey because federal laws do not recognize them. Lawyers say they sometimes have to hire accountants because couples file their tax returns jointly in the state but separately at the federal level. Under a federal exemption, divorced heterosexual couples can split pension benefits without tax repercussions, but gay couples cannot.

And if you’re looking for alimony? Yeah, good luck with that.

Debra Guston, 50, handles civil union dissolutions in her Glen Rock-based practice. She says the law may not give alimony protection to couples whose relationship lasted decades before civil unions were possible and are now breaking up — couples who would have married before 2007 if they could have.

“What do you do with a couple who are maybe in their 50s and have been together for 30 years but they have only been in a civil union for two? On a legal basis, the alimony obligation is only 2 years old,” Guston said. She noted that when most heterosexual couples face a similar problem it’s because they chose not to marry earlier.