Frequently Asked Questions about New Jersey Civil Unions: A Practical Guide for Same-Sex Couples

When will my partner and I be able to get a civil union in New Jersey?

Monday, February 19, 2007 – sixty days after Governor Corzine signed the Civil Union bill into law – is the first day you will be allowed to obtain a civil union license in New Jersey. However, since February 19 is a state holiday, you will probably not be able to obtain a license until Tuesday, February 20.

Who is allowed to get a civil union?

Two people are eligible to enter into a civil union together if they are:

• of the same sex
• over 18 years of age, or have the consent of their parents or guardians
• not a party to another civil union, domestic partnership, or marriage
• not closely related to each other (for example, not an ancestor, descendant, sibling, niece, nephew, aunt or uncle)

Can we get a civil union immediately?

No. There is a 72-hour waiting period between getting the license and getting a civil union, equal to the waiting period before getting married. For example, if you obtain your license on February 20, the earliest you can be joined in a civil union is February 23.

How do we get a license?

Both people must apply in person to any local registrar within the state, and a license will be issued when the application is approved, probably immediately. If one or both of the applicants are New Jersey residents, submit the application in the home municipality of either applicant. If neither applicant is a New Jersey resident, submit the application in the municipality where your civil union will take place. The license is good for 30 calendar days after it is issued.

What else should I bring when I apply for a civil union license?

You’ll need the approved forms of identification, your Social Security numbers, the names and county of birth of your parents, $28 to pay the fee and a witness who is at least 18 and knows you both. Call ahead to make sure you are going to the right place, and confirm what particular type of identification that municipality requires (for example, driver’s license, birth certificate, lease, passport) and what forms of payment that municipality accepts. Check with the registrar issuing the license to determine the documents you will need to present.

Is a physical exam required?

No examination or blood test is required to obtain a civil union license in New Jersey.

If we don’t live in New Jersey can we still get a civil union there?

Yes. New Jersey does not have a residency requirement for getting a civil union in the state. However, if your home state has a so-called “DOMA” (Defense of Marriage Act) – or an amendment to its state constitution – expressly barring marriages or equivalent unions by same-sex couples, your civil union will probably not be recognized there. If your home state bans only marriage between people of the same sex, but not other similar unions, your home state may recognize your civil union.

If we were joined in a civil union in Connecticut or Vermont, will New Jersey recognize our relationship?

Yes. The new civil union law provides that your civil union entered into elsewhere will be treated as valid in New Jersey.

What if we have a California domestic partnership?

It is likely that your California domestic partnership will be recognized as a civil union in New Jersey.

What if we were married in Massachusetts or another country?

The New Jersey Attorney General issued an opinion stating that a marriage between people of the same sex performed in another state or country will be treated as a civil union in New Jersey.

Should I get a civil union in New Jersey if I already have a marriage or civil union (with the same person) in another state?

You don’t need to get a civil union in New Jersey, since you’ve already got a marriage or civil union from elsewhere, which New Jersey will recognize. Straight couples who live in New Jersey but get married out of state don’t get married again in New Jersey just to be safe, and we don’t need to do that, either. You should also consider the fact that, if you decide to split up at a point when you no longer live in a state that recognizes marriage or civil unions for gay people, having civil unions or marriages in more than one place could make it more difficult for you to dissolve your marriage or civil unions. You should discuss this decision with an attorney before you proceed.

What if we already have a New Jersey domestic partnership together, or are considering entering into one?

A same-sex couple who entered into a registered domestic partnership before the effective date of the new civil union law may remain domestic partners, or may enter into a civil union by following the standard process. (Your domestic partnership will not automatically turn into a civil union when the new law goes into effect.) Entry into a civil union will automatically terminate the domestic partnership. And once the law is effective, only couples (either same-sex or different-sex) in which both partners are 62 years or older will be eligible to register as domestic partners in New Jersey.

Will my civil union be valid outside of New Jersey?

The answer depends on a variety of factors, including the state you are in, and in what context your union would be recognized.

Connecticut and Vermont have civil unions, and will likely treat your New Jersey civil union as a civil union in those states. California has domestic partnerships that are quite similar to New Jersey civil unions, and will likely recognize a New Jersey civil union as a domestic partnership. Massachusetts allows marriage for same-sex couples, but it is unclear whether that state will recognize civil unions that are close to the legal equivalent of marriage, but are not called “marriage”.

Whether federal and other state governments and private businesses will respect your civil union is a more difficult question. The federal government currently does not recognize same-sex marriages or similar unions. Businesses that already recognize same-sex couples (through domestic partnerships or similar systems) almost certainly will. It’s hard to say what will happen with businesses that don’t recognize same-sex couples yet. Some probably haven’t been asked and may be willing.

Finally, at least twenty-seven states have constitutional amendments banning marriage (and in some states, similar unions) for same-sex couples, which means a civil union performed in New Jersey will not be recognized in those states. Many states without constitutional amendments banning marriages or other unions by same-sex couples have state laws that forbid them. It is unlikely that your civil union will be recognized in states with such amendments and laws.

If we get a civil union in New Jersey, should we sue to force our home state to recognize our union?

No. Before you begin any kind of case about your civil union, you should contact the ACLU or one of the other LGBT legal organizations. You may have a good claim that should be brought, but it’s also possible to do serious harm by suing. In 1997, an Alaskan couple sued the state for the right to marry. After they won a preliminary hearing, the state, with a 68% majority, passed a constitutional amendment banning marriages by same-sex couples. That ended the case. It also prevents any state court or the state legislature from ever allowing marriages by same-sex couples until the people vote to change the state constitution again. The state has even used the constitutional amendment as an excuse not to recognize domestic partnerships.

If you think you would like to be involved in a case to have your civil union recognized in your home state, contact us by phone at (212) 549-2627 or by e-mail at getequal@aclu.org.

What should I say when asked if I am joined in a civil union or married?

Say that you have entered into a civil union on applications for jobs, credit, mortgages, insurance and medical treatment, etc. However, if you know that the agency or organization asking does not recognize marriages or other unions by same-sex couples, and especially if saying you have a civil union will get you some benefit, you should probably make it clear that your spouse is someone of the same sex and that you have been legally joined in a civil union in New Jersey. If you don’t, you could be accused of acting improperly, and there could be consequences. This is especially true of forms from states other than New Jersey and from the federal government, such as tax forms, Immigration and Naturalization Service (now known as Bureau of Citizenship and Immigration Services) forms, Social Security forms, etc. You should talk to a lawyer in your state about how to handle these issues.

You might feel you want to use your government forms to make a stand on the issue. We understand anger at not having your relationship recognized, but think long and hard about any risk you take to make a statement. Willfully breaking the law on principle may leave you in a lot of trouble.

Would we be entitled to file a joint federal tax return?

No. The Internal Revenue Service will not recognize marriages or similar unions by same-sex couples. Since you are required to declare your marital status, the issue becomes tricky. You don’t want to deny your civil union. The best bet would be to file as single and note on the form that you are joined to a same-sex partner in a civil union. Talk to an accountant before you file.

If I get a civil union in New Jersey, can I sponsor my same-sex spouse for U.S. citizenship?

No. There’s a law that says the federal government will not recognize marriages by same-sex couples, and that includes immigration. The law will be applied to civil unions, too. While this policy may be challenged in court, you could be putting your non-national partner at risk of deportation by attempting to sponsor him or her until the courts have struck this policy down or Congress has repealed it. To tell Congress to change this discriminatory policy, go to www.aclu.org/getequal.

What happens if we decide to split up?

The only legal way to get out of a New Jersey civil union is to terminate the union in court in New Jersey, or in a state that will terminate civil unions. This is the same process as getting a divorce. If you live in New Jersey, or if you live in a state that will terminate your union, you will simply go through the divorce process there.

However, if you were joined in a civil union in New Jersey and you live in a state that does not recognize your civil union, you will probably not be able to end the union in that state. You will have to go to New Jersey or another state that recognizes the union to terminate it. Unfortunately, New Jersey has a residency requirement to terminate a civil union. Before you can terminate your union in New Jersey, at least one member of the couple must have lived in New Jersey for one year. This could cause problems if neither of you lives in New Jersey. You may also run into a residency requirement if you decide to terminate your union in another state that would recognize it.

To make matters more complicated, the fact that your home state might not recognize your civil union or let you terminate it doesn’t necessarily mean you get out of the legal obligations of a civil union.

If we break up, could I be required to pay support to my spouse?

This will depend largely on whether your state recognizes the civil union. If you live in New Jersey, Vermont, Connecticut, or California you could be required to support your ex to the same extent as a divorced person. In states that don’t recognize your civil union and won’t allow you to terminate your union, this is less likely. But if your ex moves to a state that does recognize your civil union, you may not be off the hook.

If I am married in Massachusetts or another country – or have a civil union from Connecticut or Vermont – with someone else, can I get a civil union in New Jersey?

No. You first have to dissolve the marriage or civil union before entering into a civil union with someone else in New Jersey. Otherwise you commit the crime of bigamy, since Vermont and Connecticut treat civil unions as the legal equivalent of marriage. In fact, you have to swear when applying for a civil union license that you are not currently married or joined in a union with someone else. Dissolving the civil union could be tricky however, because you may run into a residency requirement in the state where you were married or joined in a union.

What about a prior domestic partnership?

If you entered into a domestic partnership in California since 2005, it would also be a crime to get a civil union to someone else in New Jersey without first dissolving your domestic partnership.

If you have a domestic partnership from a city or county registry, check with the municipality for its rules. While you may not be subject to criminal charges if you get a civil union without dissolving that kind of domestic partnership, it would violate some domestic partnership policies and could expose you to legal liability. Since it’s generally fairly easy to dissolve a city or county domestic partnership, you should do it before getting married.

If we get a civil union in New Jersey, will that mean that my spouse automatically becomes the legal guardian of my children?

No. Even if you were to get married to a person of the opposite sex in the U.S., your spouse would not become legal guardian of your children until you get a “step-parent” adoption.

If you and your partner are joined in a civil union, and one of you has a child or you adopt a child together, you will both be the presumed parents of the child. However, while New Jersey and other states that recognize same-sex relationships will likely recognize you both as the parents of the child, you should consider also getting a joint or second-parent adoption in court. States that do not recognize your civil union might not respect your rights as parents unless you both adopt your children in court.

If I got a civil union with my same-sex partner in New Jersey, does this affect my ability to leave my property to others when I die?

Yes. If you die without a will, your entire estate goes to your partner, provided you have no children or surviving parents. If you have children, the first $50,000 of your estate goes to your spouse, along with one-half of the remainder. The other half of the remaining property goes to your children. If you have no children, and your parents are still alive, the first $50,000 of your estate goes to your spouse, and the remainder is split between spouse and parents in the same fashion.

Even if you have a valid will leaving your property to others, New Jersey has a law allowing surviving spouses to take an “elective share” of one-third of your estate. In order to take this elective share, your spouse must have been living with you at the time of your death. However, this elective share can be waived by a valid prenuptial agreement.