Gaps Mar NJ Domestic Partnership Law

July 9, 2004

No help for gay couples who split

Registering for a domestic partnership in New Jersey will soon be easy. But breaking up will be hard to do.

Attorneys and gay-rights experts say the law, which goes into effect Saturday, is poorly written and offers courts no guidance in handling the aftershocks of a breakup: Who gets the Camry, who gets the Colonial, and who gets the kids?

We should thank the Legislature for this law, because it's going to give us so much business, joked John De Bartolo, past chairman of the family law section of the New Jersey Bar Association. There's going to be a lot of litigation in the next few years, because it leaves open so many questions.

The law was a political compromise designed to grant gay couples some benefits of matrimony without upsetting opponents of same-sex marriage. It allows domestic partners the right to visit each other in the hospital and make medical decisions for incapacitated partners. It exempts them from state inheritance tax, but doesn't grant the automatic inheritance rights that accompany marriage. It extends spousal health benefits to the domestic partners of state employees, but makes no such demand on private companies.

In all, it provides only five of the 850 rights laid out in New Jersey marital law.

None of those five address what happens when the relationship turns sour. A few of the omissions are mundane; many are profound. Most important, it does not address the myriad financial and parenting responsibilities following a split. That's in sharp contrast to the state's marital laws, which are respected nationwide for being thorough and fair.

Under the new law, domestic partners have no obligation to each other once the relationship ends, unlike in marriage. Neither party can claim the assets of the other. The law offers no alimony equivalent and, unlike divorce, does not require a court to use its powers to equitably distribute a couple's property or money.

In domestic partnership, unlike marriage, there are also no joint debts so mortgages, student loans, car payments, and personal loans made by one partner would be considered his or her debt alone, even if made on behalf of the couple while they were together.

Neither does the new law address what happens to children raised by domestic partners. It does not say whether a non-biological parent has any right to custody or visitation after the relationship with the biological parent ends, even if the non-biological parent stayed at home for years to raise their child. The law also doesn't require the non-biological parent to provide child support after the couple breaks up, even if that parent was solely responsible for the child's standard of living during the partnership.

So much falls to the whim of the judge, said attorney Thomas Prol, recently named Young Lawyer of the Year by the state bar association for his work on behalf of lesbians and gays. Though the law is a good first step, too much is left open to interpretation.

The statute so baffled the legal field that both lawyers and judges packed seminars on the topic held statewide by the New Jersey Institute for Continuing Legal Education in March, April, and June. The New Jersey Bar Association has also run a course on the matter.

As confusing as divorce is, this is worse, said Stephen Hyland, an attorney with offices in Mercer and Hunterdon counties who is writing a free guide to the law that he will post at www.stephenhyland.com. At least with divorce, you have a set of regulations. With DP, there are almost none.

Gay activists, though grateful for whatever rights they can accrue, say the law's silences are deafening, not just in dealing with relationships that end, but even those that survive.

Domestic partners, for example, have no more right than a stranger to be named as guardian for an incapacitated partner, whereas marital spouses are the first to be named.

Guardians make all financial decisions for an incapacitated person, and all legal decisions as well. That means that if Mom, Sis, or Aunt Sylvia is named guardian and is hostile to the couple's relationship, she can forbid the couple from living together or seeing each other, and can even initiate termination of their domestic partnership.

The DP law is nice for what it provides, but it's grossly incomplete, said Lynn Strober, ex- chair of the state bar's family law section. Couples need to know there's a lot of protection they're not getting even though they're members of a domestic partnership.

The statute also declares that New Jersey will honor domestic partnerships and civil unions from other states, but just how that will play out is another mystery. In the absence of a will, Vermont's civil unions ensures that one partner inherits the other's assets upon death, just as marital spouses do, but the New Jersey law requires no such thing. What, then, will courts do if a couple with a Civil Union moves to the Garden State and one partner dies? Will the estate fall to the living partner, as it would in Vermont, or will the living partner have no rights to the estate, as per New Jersey law?

Lawyers say gay and lesbian couples can gain some security with additional legal documents: wills, powers of attorney, pre-nuptual agreements dealing with assets acquired before and during the relationship, and contracts laying out financial and parenting responsibilities. Of course, that entails more cost. And even then, it comes with a caveat: Judges are not required to abide by those contracts if they find them to be against public policy or improperly executed.

And so, while lawyers await the conflicts that are sure to fill their caseload, gay-rights activists continue their battle for equal marriage rights.

A suit by seven same-sex couples filed two years ago in state Superior Court in Mercer County is pending at the appellate level.

The trial judge rejected the couples' arguments, saying the matter more properly belonged before the Legislature.

An appellate decision is expected as early as this fall.