Same-Sex Marriage in the Garden State

According to 2010 census figures, nearly 25,000 same-sex couples lived in the state of New Jersey. Marriage became an option for these couples in October of 2013 following the U.S. Supreme Court decision in U.S. v. Windsor and the decision of the New Jersey Superior Court in Garden State Equality v. Dow. If you have questions about any of the legal issues pertaining to same-sex marriage in the Garden State, an experienced family law attorney is your best resource.

Marriage, Civil Unions and Domestic Partnerships

In 2004, the New Jersey state legislature passed the Domestic Partnership Act, which granted couples seeking its protection a limited set of legal rights pertaining to health care, insurance and state pensions. Additionally, the legislation allowed domestic partners to file state tax returns jointly and to inherit from a partner should that partner die without leaving a will. When this legislation was first passed, it was available as an option for all traditional and same-sex couples who were legal adults. However, the legislation has since been revised so that only traditional and same-sex partners who are 62 years of age or older can enter into new domestic partnerships.

In 2007, the Garden State passed the New Jersey Civil Union Law, which provides an identical set of state benefits to same-sex couples as those provided by marriage. Among these benefits were rights pertaining to the formal dissolution of marriage: alimony, child support and the equitable distribution of property. Under New Jersey law, a civil union is identical to marriage, but it does not afford an identical set of federal protections and benefits. If you prefer civil union to marriage for some reason, you will not be able to file your federal income taxes jointly.

New Jersey couples who have entered into domestic partnerships or civil unions can marry their partners without dissolving the preexisting arrangement.

Parental Rights and Protections

When contemplating ending a marriage, LGBT couples face the same issues that confront traditional couples. However, distinct differences do exist, particularly in the area of parental rights and responsibilities. Under New Jersey’s Parentage Act, a husband is presumed to be the legal father of any child born to his wife during a marriage. No such guidelines are in place that establish parental protections for nonbiological parents in same-sex marriages.

In practical terms, this means it can be difficult for the nonbiological parent to seek legal or physical custody. Almost uniformly, courts will grant biological parents presumptive custody rights. It may even be difficult to get visitation rights if the biological parent opposes granting them.

Second-Parent Adoption and Parenting Agreements

One means of protecting parental rights is to petition the courts for second-parent adoption, which is also called co-parent adoption. This legal procedure allows a nonbiological parent to adopt his or her partner’s child without terminating the biological parent’s legal parental status. New Jersey is one of 15 states that permit second-parent adoption. This is an option available to marriage partners as well as to partners in a civil union.

Second-parent adoption confers parental protections even if partners subsequently divorce in a state where parental rights for same-sex couples are more ambiguously interpreted. Adoption places both the biological and nonbiological parent on an equal footing. Should the marriage subsequently be dissolved, the courts will proceed to make custody determinations that reflect the child’s best interests.

Another strategy that can be used to protect the rights of nonbiological parents is a parenting agreement signed by both partners. Such an agreement stipulates that even though the biological parent may be the legal parent, both partners consider themselves to be the child’s parents. It also includes specific language that addresses what would happen in the event that the marriage ends.

If you have questions regarding your same-sex marriage, the services of a New Jersey family law attorney can be invaluable. Contact the Cherry Hill law office of Morgenstern & Rochester today at (856) 489-6200.