Breaking Up is Hard to Do

May 27, 2003

In a recent New York Times article, it was pointed out that 85 percent of the approximately 5,400 couples granted civil union licenses were not from Vermont. I'm not surprised - my partner and I have considered taking a trip to Vermont to get hitched, even though the license currently has no recognition outside the state of Vermont. It's exciting to think that there is at least one place in the US that recognizes our relationship and gives us the opportunity to solemnify them.

Vermont's civil union law, passed in 1999, allows any couple to apply for a license with the town clerk where they reside. Non-resident couples may also enter a Vermont civil union. To do so, they file their form with the town clerk in any Vermont town. Bed & breakfasts are advertising civil union specials in gay papers throughout the US, encouraging same-sex couples to come for a few days and get hitched while staying at the B&B. These package deals often come with champagne, cake, and flowers to make the day as special as any heterosexual wedding.

There's just one problem, though. What if the out-of-state couple wants to break up? Under the Vermont law, dissolution of a civil union is subject to the same procedures, rights and obligations as the dissolution of a marriage, including residency requirements. Thus, a couple looking to dissolve a civil union need to look at the requirements for dissolution of a marriage in Vermont.

First, the couple must articulate a grounds for the divorce. These are (a) adultery; (b) when one spouse is actually in prison for three or more years; (c) intolerable severity; (d) wilful desertion or one spouse has gone missing for seven years; (e) failure to support the other spouse when one is able to; and (e) when the parties have been separated for at least six months and are not reasonably likely to reconcile (irreconcilable differences.)

The second requirement is that the action for dissolution must be brought in family court in Vermont. For an out-of-state couple, you may think this simply means a second trip to Vermont, one with less happy memories than the trip taken to file the civil union in the first place. Unfortunately, there is a third requirement that has created a huge dilemma for non-resident partners who want to dissolve their civil union.

When Vermont liberalized its divorce laws some years ago, the legislature wanted to avoid becoming a divorce mill for married couples from other, less liberal states. It therefore imposed a residency requirement that at least one spouse had to be a resident of Vermont for at least six months before they could file for divorce and had to be a resident for at least one year before the divorce could be granted by the court.

This is fine for gay and lesbian couples who already live in Vermont but creates a real problem for those who live out of state. In order to terminate a Vermont civil union, a non-resident spouse must move to Vermont, wait six months, file suit in family court and provide a grounds for the dissolution, then wait six months for the court to grant their petition. That is, of course, assuming the dissolution is uncontested.

Non-resident heterosexual married couples have another option, of course. Unless they have a specific reason to file for divorce in Vermont, (in which case they, too, would have to meet these requirements), they can simply file in their state of residence. Under the full faith and credit clause of the US Constitution, all states recognize marriages and divorces granted in other states. As a result, out-of-state same sex couples who wish to dissolve their Vermont civil union have begun asking courts in their state of current residence to grant the dissolution.

So far, only one couple - two lesbians in West Virginia - have succeeded in having their civil union dissolved by another state's family court. Two other reported attempts have failed. A Connecticut court refused to grant a dissolution to a couple in that state; the judge's refusal was upheld on appeal. And a Texas court, which initially granted a dissolution, withdrew its decision and agreed to rehear the case after the Texas attorney general intervened. The petitioning partner subsequently withdrew his petition and, I suspect, the judge has been targeted for a challenge in the next election.

As a result, non-resident couples who obtain a Vermont civil union enter a legal twilight zone if they choose to separate. They cannot legally dissolve their union without one of them moving to Vermont, yet they have a state law which has an unknown affect on their property, custody, and inheritance rights. Sooner or later, state courts outside of Vermont are going to have to address the affect of a Vermont civil union on all of these areas. And yet they are adverse to deciding the issue because they realize that it will inevitably result in the recognition of a civil union.

There is one possible solution for couples who have already registered in Vermont or intend to do so. The Vermont law allows the couple to sign an antenuptual agreement. So long as this agreement doesn't violate local law by stating a purpose that is against state law, it can be enforced in any state in the US as an ordinary contract. Thus, a couple who decided to enter a civil union in Vermont should follow the filing of the union with the signing of a partnership agreement that sets out all the rights and responsibilities of each partner, including how the partnership is dissolved.

We all want love to be forever and ever. Unfortunately, it doesn't work out this way for many couples. Therefore, you may want to wait a few years before taking that romantic trip to Vermont to tie the knot. Who knows, maybe by then you'll be able to do so in your own home state.