“Breaking Up” is Much Harder for New Jersey Civil Union Partners

Civil Union vs Married: Dissolution Differences

Our older clients will remember the 1962 hit song “Breaking Up Is Hard to Do” by Neil Sedaka. Anyone who has been through a divorce will readily agree with Mr. Sedaka! This truism is particularly applicable to civil unions in New Jersey. In 2006, the New Jersey Supreme Court ruled in Lewis v. Harris that the Garden State’s same sex couples are entitled to the same state constitutional equal protections afforded to married heterosexual couples:

Ultimately, we have the responsibility of ensuring that every New Jersey citizen receives the full protection of our State Constitution. In light of plaintiffs’ strong interest in rights and benefits comparable to those of married couples, the State has failed to show a public need for disparate treatment. We conclude that denying to committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. We now hold that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by married opposite-sex couples.

Later that same year, the New Jersey State Legislature responded to the Harris decision by passing legislation providing for “civil unions.” The Legislature’s civil union bill did not, however, end the discussion. Ever since civil unions have been permitted in New Jersey, there has been a robust and ongoing debate concerning whether that institution, at least in its current statutory form, truly places same sex couples “on equal terms” with opposite sex couples as contemplated by the Harris Court… A major complicating factor for New Jersey’s same sex couples is the lack of a “irreconcilable differences” for divorce contained in the 2006 civil union legislation. On January 20, 2007, Governor Jon Corzine signed a bill allowing opposite sex couples to file for a divorce on the basis of “irreconcilable differences.” Prior to January 2007, an individual filing for divorce in New Jersey was forced to allege a “fault-based” grounds for divorce or an 18 month separation. For example, either spouse could file a complaint stating that the other party engaged in “mental cruelty;” unfortunately, such a charge required the accusing party to set forth specific instances of cruel behavior in the complaint itself.  To succeed on the grounds of adultery, parties must prove “opportunity” and “inclination” on behalf of the accused spouse to commit adultery backed up by circumstantial evidence, as well as name and serve the alleged adulterous third party in the complaint. It’s easy to see how accusing the other party of adultery, extreme cruelty or some other fault-based grounds often had the effect of unnecessarily exacerbating both the cost and length of matrimonial litigation. It also made certain divorce cases much harder to resolve since such emotionally-charged, personal and sensitive complaints often cause the responding party to dig his or her heels into the ground.  Demonstrating “irreconcilable differences,” however, only requires the complainant to show there had been a breakdown of the marriage for six or more months prior to filing and, additionally, that there exists no realistic chance or reconciliation. It’s a much easier and less contentious way to proceed! The “irreconcilable differences” option is not, however, available to same sex civil union couples seeking a dissolution. The “irreconcilable differences” law signed by Jon Corzine in 2007 did not amend the civil union law passed roughly one year before. What follows are the available grounds for dissolution set forth under New Jersey statute:

2A:34-2.1. Dissolution of a civil union, causes. 64. The dissolution of a civil union may be adjudged for the following causes: a. 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; b. willful and continued desertion for a period of 12 or more consecutive months, which may be established by satisfactory proof that the parties have ceased to cohabit as partners in a civil union couple; c. extreme cruelty, which is defined as including any physical or mental cruelty that endangers the safety or health of the plaintiff or makes it improper or unreasonable to expect the plaintiff to continue to cohabit with the defendant; except that no complaint for termination shall be filed until after three months from the date of the last act of cruelty complained of in the complaint, but this provision shall not be held to apply to any counterclaim; d. separation, provided that the partners in a civil union couple have lived separate and apart in different habitations for a period of at least 18 or more consecutive months and there is no reasonable prospect of reconciliation; and provided further that, after the 18-month period, there shall be a presumption that there is no reasonable prospect of reconciliation; e. voluntarily induced addiction or habituation to any narcotic drug, as defined in section 2 of the “New Jersey Controlled Dangerous Substances Act,” P.L.1970, c.226 (C.24:21-2) or in N.J.S.2C:35-2 of the “Comprehensive Drug Reform Act of 1987,” N.J.S.2C:35-1 et al., or habitual drunkenness for a period of 12 or more consecutive months subsequent to establishment of the civil union and next preceding the filing of the complaint; f. institutionalization for mental illness for a period of 24 or more consecutive months subsequent to establishment of the civil union and next preceding the filing of the complaint; or g. imprisonment of the defendant for 18 or more consecutive months after establishment of the civil union, provided that where the action is not commenced until after the defendant’s release, the parties have not resumed cohabitation following the imprisonment. L.2006, c.103, s.64.

Consequently, obtaining a civil union dissolution requires the pleadings to detail specific acts of fault as opposed to the nondescript irreconcilable differences married couples can plead.   There is also no indication as of this writing that the New Jersey Legislature is considering any modifications to the civil union law. The good news is that you don’t have to navigate this difficult process alone. More importantly, you don’t have to tackle momentous decision without professional, experienced and compassionate assistance to protect your rights and work towards your goals.  If you or someone you know is considering seeking a civil union dissolution in New Jersey,  contact the family law attorneys at DeMichele & DeMichele online today.  Your confidential initial consultation is only a phone call away: (856) 546-1350.