Entering a Civil Union

June 5, 2008

In order to enter into a civil union in New Jersey, you must first obtain a civil union license after proving your eligibility, wait at least the required 72 hours until the license is issued to you, then have a person who is eligible to do so solemnize the civil union. This procedure parallels the process of entering into a marriage in New Jersey.

This chapter discusses the entire process of entering a civil union, including determining whether you and your partner are eligible or even need to enter into a civil union in this State, how to obtain a license, and how to formalize the civil union.

Eligibility

Before you decide to enter into a civil union, you and your partner need to determine if you are eligible to do so. As part of its decision in the 2006 marriage case, the New Jersey Supreme Court held that

[i]f the State proceeds with [civil unions], it cannot make entry into a same-sex civil union any more difficult than it is for heterosexual couples to enter the state of marriage. It may, however, regulate that scheme similarly to marriage and, for instance, restrict civil unions based on age and consanguinity and prohibit polygamous relationships. Lewis v. Harris

Thus, the requirements for entering into a civil union and the requirements for entering a marriage in New Jersey are identical. These eligibility requirements are clearly set out in the civil union law and parallel the requirements for marriage. This section should help you decide if you are eligible and, if you are not, help you understand how you can correct some of the more common problems.

Eligibility Requirements

To be eligible to enter into a legally recognized civil union in New Jersey, you and your partner must meet all of the following criteria, prior to or at the time you obtain your civil union license

• You may not be a party to another civil union, domestic partnership or marriage in New Jersey.
• You must both be of the same gender.
• You must both be at least 18 years of age or, if one partner is a minor, that partner's parents or legal guardian must give written consent. See Age Requirements, below, for more information.
• You and your partner may not be closely related. See Prohibited Civil Unions, below, for more information.

See Sections 3, 6 and 10 in the Civil Union Bill for the exact requirements.

Unlike domestic partnership, there is no residency requirement. Thus, non-residents may enter into a civil union in New Jersey. However, if you and your partner are non-residents and do not intend to live in New Jersey, the benefits of a civil union (and the obligations) will not be available to you unless you live in one of the states or foreign jurisdictions that currently recognize civil unions. Furthermore, if you and your partner decided to dissolve your civil union, one of you will be required to become a resident of New Jersey for at least one year before you can file for dissolution.

If you are in a civil union, domestic partnership or marriage

If you are in a civil union, domestic partnership or marriage with someone other than your intended spouse, you must dissolve your prior relationship, even if it was formed in another state or foreign jurisdiction. To understand this requirement, you must first understand what same-gender relationships are now recognized in New Jersey.

In February 2007, the New Jersey Attorney General released an opinion in regard to the recognition of same-gender relationships entered in other jurisdictions. In this rather convoluted opinion, the Attorney General recommended that same-gender statutory relationships from other jurisdictions that most closely approximate a New Jersey civil union be recognized as civil unions, whereas those most closely approximating a New Jersey domestic partnership are recognized as a domestic partnership.

Based upon this analysis, civil unions established in Connecticut, New Hampshire or Vermont, and domestic partnerships established in California and Oregon, would be considered valid civil unions in New Jersey. In addition, the opinion recognizes similar same-gender relationships, other than same-gender marriages, as civil unions, including civil partnerships entered into in the United Kingdom.

The recognition of same-gender marriages entered elsewhere is murkier in New Jersey. According to the Attorney General's opinion, a same-gender marriage legally entered into in another jurisdiction, including Massachusetts, Canada, Spain, Belgium, South Africa and the Netherlands, would be considered valid but treated as a civil union. However, it also seems clear that the Legislature considered — and subsequently discarded — a prohibition on the recognition of same-gender marriages legally entered elsewhere and this is currently being tested. See Interstate Recognition of Marriages, elsewhere in this guide, for a more in-depth discussion of this topic.

All other state-sanctioned same-gender relationships are considered valid domestic partnerships. The Domestic Partnership Act seems to recognize registration in a local domestic partnership registry, such as New York City, Key West, and other municipal registries, as sufficient to form a New Jersey domestic partnership. However, this has never been tested in court and you should not rely on this recognition.

If you and your partner entered into a civil union elsewhere, or are in a legal relationship that is recognized in New Jersey as a civil union, you do not need to enter into a new civil union in this state (although you can undergo a reaffirmation of your civil union if you so choose). If you and your partner are currently in a domestic partnership, you do not need to terminate the domestic partnership; entering into a civil union automatically terminates your domestic partnership.

If you or your partner is in a domestic partnership with someone else, the domestic partnership must be formally terminated prior to applying for your civil union license. Unlike domestic partnership, however, there is no waiting period following the termination, and you may immediately thereafter enter into a civil union.

Prohibited civil unions

One requirement for entry into a civil union is that you and your partner must not be related. As in marriage, you may not enter a civil union with any of your ancestors or descendants, in particular, with a sister or brother, niece or nephew, uncle or aunt, whether they are of whole or half blood.

Same-gender couples only

Civil unions are limited to same-gender couples. As originally drafted, the limitation was that the parties must Be of the same sex and therefore excluded from the marriage laws of this State or any other state. However, in an amendment to the bill, the underlined language was deleted and the limitation now reads, Be of the same sex.

This prior limitation constituted a mini-DOMA (Defense of Marriage Act) that would have acted to prevent recognition of same-gender marriages entered in other jurisdictions. While the Legislature was considering the civil union bill, Steven Goldstein (Garden State Equality), David Buckel (Lamda Legal), Laura Pople, and other activists successfully lobbied for the removal of this language. As a result, it appears that a same-gender marriage entered in a jurisdiction where such marriages are legal (such as Massachusetts or Canada) should be recognized as a marriage in New Jersey.

Age Requirements

As in marriage, both parties to a civil union in New Jersey must be at least 18 years of age in order to enter into a civil union. Thus, a minor may enter into a civil union with the written permission of his or her parents or guardian. This permission must be in the form of a written certification, executed in the presence of two witnesses, and delivered to the person issuing the civil union license. If a parent or guardian is mentally incompetent, their consent to the civil union is not required. Presumably, this requires the minor to supply proof of the incompetency when applying for the license.

There does not appear to be a lower age limit for a civil union or marriage in New Jersey. However, if a party is under the age of 16 years, the written parental consent must be submitted to a family court judge for written approval, which must be filed with the parental approval when applying for the civil union license.

If you and your partner are both ages 62 or older, you are still entitled to enter into a domestic partnership in New Jersey. Registration in a domestic partnership will provide you with a limited subset of the rights and responsibilities of a civil union.

Obtaining A Civil Union License

No more than 30 days before you intend to have a civil union performed in New Jersey, you must apply for a civil union license from a licensing officer, wait 72-hours, then pick up the license and deliver it to the person who will officiate over your civil union. The 72-hour waiting period can be waived in some circumstances. The license, once you have obtained it, is good for 30 days. See Figure 1: Application for License.

Unlike domestic partnerships, in which application and registration are a one-step process, you are not in a civil union until the officiant signs the license. Simply obtaining the license will not do.

Application Process

In order to obtain your license, both of you must appear together before the appropriate licensing officer, along with at least one witness who knows you both. The licensing officer will require you to subscribe and swear to an oath regarding the legality of your proposed civil union. Upon completion of this process, and submission of the application fee, (currently $28), you, your intended spouse and your witness will be required to swear an oath or affirmation that the information you have provided is correct, then sign the application in the presence of the registrar.

Unless you have obtained a waiver, or you have applied for reaffirmation of a civil union, you must wait 72 hours (3 days) from the time you file your application, after which one or the other of you must return to pick up the license and deliver it to the officiant. The license issued to you is valid for 30 days, after which it expires. If your license expires, you will be required to file a new application, including paying the application fee.

If you intend to have both a civil ceremony and a religious ceremony, you need to tell the licensing officer this information so that he or she can issue a license in duplicate, marking one as issued for civil marriage or civil union ceremony and the other as issued for religious marriage or civil union ceremony.

Where to Obtain Your License

You apply for your civil union license at your local registrar, which in large cities is generally the city clerk. In smaller cities, you apply to the person who is designated as the deputy of the State registrar.

For a list of local registrars, see www.state.nj.us/health/vital/regbycnty.shtml.

If you are a New Jersey resident

If either (or both) of you is a New Jersey resident, you must apply for your license in the municipality in which you live. If both of you share the same New Jersey residence, you have no choice but to apply with the local registrar in your municipality. If you and your partner currently have separate New Jersey residences, you may apply with the local registrar in the municipality in which either of you resides. The license is valid anywhere in New Jersey.

Unlike domestic partnerships, you cannot apply for a license in any municipality in the State. This has caused some couples to hesitate, particularly if they live in a small town and are concerned about revealing that they are gay or lesbian. This privacy concern has been raised to the Civil Union Review Commission, which may address the issue in a future report. Unfortunately, for couples who are concerned about this, there is only one other solution: they may choose to travel to Vermont, Connecticut or New Hampshire in order to enter into a civil union that will be recognized here in New Jersey.

If you are a nonresident

Unlike domestic partnerships, nonresidents of New Jersey can enter into a civil union. If neither of you is a resident of New Jersey, then you must first decide where you intend to have the civil union performed and then apply for your license in that municipality. The civil union license for non-residents is only valid in the municipality where it is issued. If you decide to have your civil union performed elsewhere in New Jersey, you will need to obtain a new license in that municipality.

Waiving the waiting period

In certain circumstances, you may seek a waiver of the 72-hour waiting period. In order to do so, you must obtain an order from the Superior Court judge waiving all or any part of the 72-hour period. In order to obtain such a waiver, you must show satisfactory proof of an emergency. The most common reason for obtaining this reason is that there is some form of medical emergency, for example, your partner is severely ill or a parent or other family member is dying. If you obtain such an order, it must be submitted at the time you apply for the license.

What to Bring

When you apply for your license, you need to bring the following:

• Your birth certificate, driver's license, passport or a state-issued ID;
• Proof of residency (although you are not required to be a New Jersey resident);
• Your social security number;
• A witness who is at least 18 years of age and knows both of you; and
• The $28 application fee.

If you were previously married, in a civil union or in a registered domestic partnership (with someone other than your intended spouse,) you must bring proof that the prior relationship has ended. If you were divorced or had a prior marriage annulled, had a prior civil union dissolved or annulled, or have had a domestic partnership terminated, you must bring a certified copy of your divorce/dissolution decree or your annulment documents. If your prior spouse is deceased, you must bring a copy of his or her death certificate.

If any documents are in a foreign language, you must provide a certified English translation.

To apply for reaffirmation of your civil union, you must also provide proof of your prior civil union.

Solemnizing Your Civil Union

Solemnization takes place in a civil union ceremony, equivalent to a marriage ceremony. Although a civil union ceremony can be as elaborate as any wedding can be, in its most basic form, it requires you and your partner and an eligible officiant to sign the civil union license in the presence of witnesses, after which the officiant is responsible for delivering the license to the appropriate registrar.

If you are a New Jersey resident, your civil union can be solemnized anywhere in this State, regardless of where you obtained your license. For non-residents, on the other hand, the civil union must be solemnized in the same jurisdiction where you obtained your license.

Who May Officiate

Any individual who is statutorily authorized to solemnize a marriage can solemnize your civil union. Specifically, any of the following can conduct the ceremony:

• Judges – any judge of the United States Court of Appeals for the Third Circuit, a federal district court judge, a United States magistrate, municipal court judge, Superior Court judge, tax court judge.
• Retired Judges – any retired judge of the Superior Court, Tax Court, the former County Court, the former County Juvenile and Domestic Relations, or the former County District Court, so long as they have resigned in good standing.
• County Surrogate.
• County Clerk.
• Mayor of any New Jersey municipality, or any deputy mayor, if authorized by the mayor.
• Chairman of any township committee or village president of the State.
• Every minister, rabbi or religious leader of any religion.

Religious societies (such as the Society of Friends), religious institutions or organizations in the State may also join partners in a civil union according to the rules and customs of the society, institution or organization.

Note that, according to an opinion of the Attorney General, issued shortly before the civil union bill went into effect, a minister, rabbi or other religious leader, and a religious society, institution or organization is not required to solemnize a civil union, even if they will solemnize a marriage.

However, public officials, including mayors, surrogates, county clerks and others may only refuse to officiate over a civil union if they also refuse to officiate over a marriage. Initially, several mayors stated that they would not solemnize civil unions for religious reasons. The Attorney General's opinion clarified that any civil officer who refused to solemnize civil unions but continued to conduct marriages would be in violation of the New Jersey Law Against Discrimination.

Civil Union Ceremony

Most officiants who are willing to conduct a civil union have adapted the standard marriage ceremony, usually consisting of vows, or other formal affirmations made by the parties. The officiant is authorized to administer oaths to the parties, and may require them to provide true answers to any questions he or she may ask in order to determine if there are any impediments to the civil union.

At the conclusion of the ceremony, the officiant will sign the license and subscribe the date and place of the civil union, after which two witnesses who were present at the civil union ceremony must also sign the license.

Following the ceremony and the signatures, the officiant will transmit the license and original certificate of civil union to the State registrar. A copy of the certificate is filed and retained by the local registrar and you and your partner will receive a copy of the certificate. The officiant retains the remaining copy.

At the conclusion of the ceremony, you and your partner are formally joined in a civil union, and your copy of the certificate is your proof of that.

Reaffirmation of an Existing Civil Union

As previously discussed, if you and your partner are already in a civil union, or are in a relationship that is considered equivalent to a civil union in New Jersey, you do not need to go through the same process here in New Jersey in order to receive the benefits of the civil union laws.

However, you may optionally undergo a reaffirmation of your civil union here in New Jersey, which entails a shortened process for formalizing your civil union in this State. Reaffirmation, which is also available for marriage, allows you to skip the 72-hour waiting period and immediately obtain your marriage license. You will still have to have an eligible individual officiate over the civil union ceremony and this solemnization must be done within 30 days after you obtain the license.

The license issued for reaffirmation of a civil union will be specifically marked as such, with the language Issued for reaffirmation of a civil union — originally entered into a civil union to same mate at (state place) on (state date). This license is immediately issued at the time of application and can be immediately solemnized.

Reaffirmation should be considered if you and your partner have been married in Massachusetts, Canada, or some other jurisdiction that allows same-gender marriage, since it would extend recognition of your relationship to states that recognize civil unions but not same-gender marriages (including New Hampshire, Connecticut, Vermont and California). Because Massachusetts and Canada do not recognize civil unions, reaffirmation of your civil union will have no affect on your marriage, and you will be viewed as married in those jurisdictions.

Reaffirmation should also be considered if you have entered into a legal relationship that is equivalent to a civil union in New Jersey, such as a civil partnership in the United Kingdom. Some states that recognize civil unions may not recognize these equivalent foreign relationships. Reaffirming your civil union confers New Jersey's blessing on your relationship and should be recognized in other civil union states.

Certificate of Civil Union

Once your license has been signed, you will receive a copy, which is your temporary proof of your civil union. The officiant will file the license and certificate with the local registrar of the municipality where the civil union was performed.

You and your partner should keep your certificate of civil union with your other valuable papers, such as in a fireproof safe or a safe deposit box.

Obtaining a Copy of Your Certificate

You may obtain additional certified copies of your civil union certificate from the local registrar where the civil union was performed, or by filing an application with the State Bureau of Vital Statistics and Registration in Trenton, New Jersey. See Application for a Certified Copy of a Vital Record.

In order to obtain a certified copy, you must be able to provide the following information:

• Full name of both partners;
• Municipality where the civil union was performed; and
• Exact date of the civil union.

You must also provide proof of your identity by providing a current, valid photo driver's license or state-issued ID or a non-photo license or ID and an alternate form of ID with current address. If you do not have a driver's license or state-issued ID, you must provide at least two of the following items, at least one of which must have your current address:

• Automobile registration and/or insurance card;
• Passport;
• Voter registration;
• Green card or immigrant visa;
• Federal or county ID;
• School ID;
• Court documents;
• W-2 for current or previous tax year; or
• Utility or bank statements (must be within the last 90 days).

If you are requesting a certified copy you must provide proof of your relationship to the persons listed on the certificate, and you must prove that you are one of the following:

• The subject of the record;
• The subject's parent, legal guardian or legal representative;
• The subject's spouse/civil union partner;
• The subject's child, grandchild or sibling, if of legal age;
• A state or federal agency for official purposes; or
• Pursuant to a court order.

For more information, see www.state.nj.us/health/vital/tips.shtml.

Making Changes to Your Certificate

Although you should check your civil union license carefully before you sign it and file it with the local registrar, mistakes do happen. If there are any corrections that need to be made to your civil union certificate after it is filed, you must first obtain a copy of your certificate then submit the changes to the State registrar.

Changing Your Name

You and your civil union partner may want to change your name to reflect your new status as a couple. Unlike domestic partnership, the civil union law provides you and your partner with the same right to change your name as an opposite-gender married couple. Thus, you and your partner may choose to use the same last name or, like many couples, you may want to use a hyphenated name.

Changing your name as a result of your civil union is a two-step process. First, you should change your name on all state records. Second, you should change your name on federal records and on any formal records in other states, such as professional licenses.

Changing your name on state records

Your certified civil union certificate is all the proof you need to change your name on state records. You should file a copy with the New Jersey Department of Treasury and the Bureau of Vital Statistics at the following addresses:

To change your name on your driver's license, you may present your certificate at any Motor Vehicle Agency.

Changing your name on federal records

Unfortunately, as a result of the federal Defense of Marriage Act (DOMA), most federal agencies will not accept a civil union certificate (or, for that matter, a same-gender marriage certificate), as proof of a name change. In particular, the U.S. State Department has issued a directive specifically stating that a civil union or same-gender marriage certificate is not acceptable proof of a name change for obtaining a new passport. In order to change your passport, you will need to provide a formal judgment of name change from a state court.

Not all federal agencies, however, have adopted this policy. In particular, the Social Security Administration has chosen to accept a New Jersey civil union certificate as proof of a name change. To obtain a new social security card in your new name, you must go to your nearest Social Security Administration office with a copy of your certificate and at least one other form of identification. Note, however, that this simply changes your social security records; it does not make you eligible for your partner's social security benefits.

Changing your name on other state's records

If you and your partner are New Jersey residents, it is unlikely that you will need to file a name change in another state. However, if you hold a professional license that is registered in another state, such as a law license or medical license, or if you and your partner are non-residents of New Jersey, you may need to register your name change in other states.

The procedures for registering your name change in other states will depend upon two things: whether that state recognizes your civil union or, if it does not, whether it will accept your civil union certificate as proof of the name change.

If you need to register your name change in Vermont, New Hampshire, Connecticut, California, or Oregon, you should be able to use your New Jersey civil union certificate as proof without further trouble. However, in states such as Pennsylvania, Delaware or New York, or other states that do not recognize civil unions (including Massachusetts), you should check with the particular agency to determine whether they will accept your certificate as proof of the name change. If they do not, you will need to obtain a formal judgment of name change, either in New Jersey or in that state.

Notify third parties

You should also remember to notify your employer of your name change, if you choose to do so, as well as notify others, such as your library, or anyone else you want to notify of your name change. If you have a professional license and you want to use your civil union name professionally, you should contact your state's professional licensing agency.

Obtaining a formal judgment of name change

At this time, to obtain a formal judgment of name change in New Jersey, you must file a formal proceeding with the family court in your county of residence.

To change your name this way, you must tell the court in a verified complaint what your name is, what you want to change your name to, and why you want to change it. You must also inform the court if you have ever been convicted of a crime, or if you have criminal charges pending against you. You must also prepare an Order Fixing Date of Hearing, a proposed Form of Judgment, and a Civil Case Information Statement (CIS). The cost is $200. You may file the change for you and your partner, as well as all other family members, with a single application.

You must file the original and at least one copy of these papers, along with the check made payable to the Treasurer, State of New Jersey, either in person or by mail, with the Clerk of the Family Part in your county of residence. If you file by mail, you must enclose a stamped, self-addressed envelope. The Clerk will return your copy to you and will set the date for the hearing and will stamp the papers with a docket number. This docket number must be used for all correspondence with the court.

If you have pending criminal charges or delinquent charges in New Jersey, there are additional procedures that you are required to follow, and you should check with the clerk.

At least two weeks before the hearing date, you must have the Order Fixing Date of Hearing published in the newspaper chosen by the judge. The newspaper will be able to advise you of the form of this notice. Once the newspaper has published the required notice, it will provide you with an affidavit of publication. You must send the original of this to the court. After the hearing, you will be required to publish the final judgment in the same newspaper within 20 days following the entry of judgment. The newspaper will provide you with an affidavit of publication, which you must then file with the court.

Finally, you must order a certified copy of the Final Judgment by mail or in person. Although the court will provide you with one certified copy at no additional charge, you should obtain additional certified copies. You must file certified copies of the final judgment with the New Jersey Department of Treasury and the Registrar of Vital Statistics. You should also obtain additional copies if you need to file a certified copy with any federal agency or with another state.

The State judiciary site provides a pro se kit for name changes, if you choose to do it yourself. For more information, see www.judiciary.state.nj.us/prose/10551_namechg_adult.pdf.

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