Non-Traditional Family Units – Same Sex Couples

A. Same Sex Couples

While the concept remains controversial, there is a demonstrable trend in some parts of the U.S. to recognize marriage rights for same sex partners. Thirteen states now permit marriage by persons of the same gender (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington). These states comprise about 30% of the U.S. population. Thirty-five states prohibit marriage by persons of the same gender. Five states which do not recognize same sex marriage authorize civil unions between persons of the same gender (Colorado, Hawaii, Illinois, Nevada and New Jersey). These states include another 11% of the U.S. population. Wisconsin provides certain limited rights for same sex couples.

The same laws concerning traditional marriage apply for same sex spouses in those states recognizing same sex marriage. Presumably, same sex common law marriage may exist in Iowa and Rhode Island.

States permitting civil unions typically apply the same provisions for dissolution of marriage to civil union partners who have separated and are seeking to sever their legal bond (for example, New Jersey Statutes Annotated 37: 1-33, and Colo. Rev. Statute §14-115-107).

Over time, we will expect to see how courts in states which do not recognize same sex marriage or civil unions handle litigants seeking to dissolve their union in those states. Conflict of law issues as well as issues comity among the states is implicated by these possible cases. With the recent Supreme Court case striking down provisions of the federal Defense of Marriage Act (DOMA), same sex marriages should be entitled to federal social security, taxation and other benefits.

Less clear is how civil unions will be treated under federal law. One would presume that civil unions would not receive the same benefits as marriages, but we can expect new cases seeking federal benefits for civil unions. Civil unions will commonly be used by same sex couples, but in Illinois and Colorado couples of different genders may enter into a civil union. Test caes regarding federal benefits may include heterosexual couples seeking equal treatment with married couples under federal programs. On the other hand couples of any gender may seek the state law benefits of civil unions, while seeking to keep “single” filing status for federal tax purposes.

The family law attorney should become familiar with the status of civil unions or same sex marriage in the states they practice in.

By: Rich M. Arnold, Esq. Arnold & Arnold, LLP