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Same-Sex Marriage in New Jersey
In the case of the United States v. Windsor, the United States Supreme Court held that pertinent provisions of the definition of marriage was unconstitutional as a deprivation of the liberty of the person protected by the 5th Amendment. (U.S. v. Windsor, 133 S. Court 2675 (June 26, 2013)). The Court’s rejection of the definition of marriage in DOMA had wide range implications under Federal Law. With the ruling, married same sex couples will be treated the same as traditional couples. This also means that married same sex couples will have the same rights as traditional married couples in such areas as income tax, estate tax, health privacy and other federally regulated areas, including immigration.
On February 21, 2012, in a case entitled Garden State Equality, et al. v. Paula Dow, et al., New Jersey Superior Court Judge Feinberg held that the plaintiff stated a claim against the defendants on the basis that New Jersey’s Civil Union Act violated the equal protection clause of the Fourteenth Amendment and ordered that a trial be conducted at a future date. In the prior case of Lewis v. Harris, 188 N.J. 415 (2006), the Court held that, in order to comply with the equal protection guarantee of the New Jersey State Constitution, the State must provide to same sex couples, on equal terms, the full rights and benefits enjoyed by heterosexual couples. The legislature then enacted the civil union legislation to comply with the ruling in Lewis v. Harris. The civil union statute, N.J.S.A. 37:1-28, et seq., conveyed State benefits upon same-sex couples, but fell short in granting them the full status of marriage, which would otherwise entitle them to Federal benefits. U.S. v. Windsor paved the way for the case of Garden State Equality v. Dow, to examine and rule on the violation of equal protection when same-sex couples in States that permitted same-sex marriages were granted Federal benefits where same-sex couples were denied Federal benefits in States which did not permit same-sex marriages. The New Jersey Supreme Court denied the application of the Defendant, Paula Dow (Attorney General of New Jersey), for a stay in the case of Garden State Equity v. Dow. Governor Chris Christie elected not to pursue the case further. Hence, same sex marriage is now legal in New Jersey.
There remained many unresolved issues as a result of the cases of U.S. v. Windsor and Garden State Equality v. Dow. Among those issues is the question whether New Jersey’s civil unions will automatically be converted to marriage or whether the civil union couples will have to remarry in New Jersey. Presently, it would appear that civil union couples are not married for Federal purposes, except perhaps for eligibility for Social Security spousal survivor benefits based upon intestate succession. According to the State of New Jersey Department of Health – Vital Statistics and Registry, same-sex couples married in another State that permits same-sex marriages will not have to remarry in New Jersey in order to have their marriage recognized in New Jersey. A domestic partnership does not have to be dissolved in order to enter into a same-sex marriage in New Jersey. Similarly, couples who have registered civil unions in New Jersey will not have to dissolve the civil union in order to marry their same-sex partner in a marriage ceremony in New Jersey. The civil union will remain valid. Civil unions will not automatically convert to marriages. As of this date (11/19/13), the Civil Union Act remains in full force and effect.
If the same-sex couple is already married in a State which permits same-sex marriages and they want to enter a same-sex marriage in New Jersey, the New Jersey marriage will be considered a remarriage and the seventy-two hour waiting period does not apply to remarriages. However, if a civil union couple apply for a marriage license with their current civil union partner, there is a seventy-two hour waiting period before receiving the marriage license unless a Superior Court Judge of New Jersey enters an Order waiving that waiting period.
Because the same-sex marriage ruling is new, and because Governor Chris Christie has withdrawn any opposition or appeal to the ruling, many issues will have to be resolved by way of legislation or future Court action. For more information, go to www.State.NJ.US.
To file for divorce in New Jersey under no-fault grounds, the couple must have been living separate and apart in different residences for at least 18 consecutive months. There must be no hope of reconciliation in the marriage.
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