American Academy of Matrimonial Lawyers (AAML)
Civil Unions Judicial Toolbox
Kimberly R. Willoughby
Fellow, American Academy of Matrimonial Lawyers, and Principal, Willoughby & Associates
Zachary S. Roeling
Law Clerk, Willoughby & Associates
Alex Gunning, Joshua Nowak, and Christopher Sanders
Student Researchers, University of Denver Sturm College of Law
Kyle C. Velte
Lecturer, University of Denver Sturm College of Law, and Student Research Supervisor
*Throughout this document, the term “civil union” should also be construed to designate a comprehensive “domestic partnership” of the sort currently available in California, Nevada, and Oregon.[1]
I. Relationship Recognition
a. Civil unions are not available in my state. Can I still dissolve a civil union from another jurisdiction?
Yes. For purposes of dissolution, state courts of general jurisdiction may recognize civil unions entered into out of state under the common-law principle of comity.[2]
Traditionally, comity permits a court to give effect to another state’s acts (such as civil union legislation) when doing so is consistent with the forum state’s public policy.[3] A court’s recognition of out-of-state civil unions under comity is therefore discretionary and subject to local policy considerations.[4]
Sources of a state’s public policy may include constitutions, statutes, administrative codes, municipal codes, and executive orders.[5] A survey of changing attitudes and prevailing social trends may also prove determinative when a court is defining the “public policy” of the forum state.[6] Current social trends in most regions of the United States favor legal recognition of same-sex families.[7] Moreover, every state’s longstanding interest in avoiding hardship on parents and children is a critical policy consideration favoring recognition of intimate relationships formed out of state.[8]
While American laws towards same-sex relationships vary, only fifteen states explicitly proscribe recognition of all varieties of same-sex relationships, such as civil unions (in addition, as of May, 2014, federal district courts in six of these states have held those prohibitions to be unconstitutional).[9] This is despite widespread constitutional and statutory bans on same-sex marriage.[10]
Thus, absent a statutory or constitutional prohibition of recognizing all same-sex relationships (that has not been ruled unconstitutional) or some other overriding forum state policy, state courts of general jurisdiction are competent to entertain otherwise justiciable conflicts involving the union, such as a dissolution action. [11]
Statutorily-created “family courts,” however, are courts of limited jurisdiction and may only entertain actions for dissolution of marriage since state legislatures strictly confine such courts’ subject-matter jurisdiction to matters involving marital relationships.[12]
Finally, some state statutes explicitly call for recognition of civil unions from other jurisdictions.[13]
II. Property Division
b. I am dissolving a civil union. From what date can I treat property as “marital?”
A court may look to the date on the parties’ civil union license to determine when the couple started to accrue “marital” property.
However, in the United States the term “civil union” is a neologism dating from 2000 when the Vermont legislature passed an “Act Relating to Civil Unions”[14] to comply with an earlier Vermont Supreme Court ruling requiring the state to extend to same-sex couples “the common benefits and protections that flow from marriage.”[15] Following Vermont’s example, other jurisdictions enacted legislation conferring comprehensive, non-marital rights to same-sex couples at various points over the last fifteen years.[16] As such, the date on a couple’s civil union license or certificate does not always accurately represent when a committed relationship between the parties began.
To effectuate an equitable division of property, a court may therefore want to consider joint property interests that arose while the couple was in a committed relationship but before the law conferred on the relationship any cognizable status.
A court may utilize its underlying equitable power[17] to consider the parties’ pre-civil union property situation. Consulting the forum state’s version of the Uniform Dissolution of Marriage Act (“UDMA”) for guidance regarding equitable distribution may prove especially instructive. Under the UDMA, statutory factors a court must consider when dividing property are normally non-exhaustive.[18] Liberal construction of UDMA terms is often mandated by statute[19] and reversible error can exist when a trial court fails to take into consideration the entire duration of a couple’s committed relationship (not just the length of time the couple has been married) when dividing property.[20]
Additionally, a court may draw from various common law doctrines when ruling on an equitable division of property.
One such doctrine is “palimony,” or “Marvin actions” based in express or implied contract between two people who live together for a period of time but never seek legal recognition of their relationship.[21] In 1976, The California Supreme Court held that such a contract is enforceable, provided that the party seeking enforcement proves an agreement exists.[22] States have since diverged on whether to follow California’s example.[23]
Another doctrine is unjust enrichment. Judges may take advantage of this doctrine even in states that have expressly rejected California’s Marvin approach. The Mississippi Supreme Court, for example, recently upheld a trial judge’s unjust-enrichment award to a same-sex partner who had contributed funds towards the purchase of the parties’ former joint residence. [24] The award reflected the judge’s attempt to restore the status quo and return the parties to the positions they had occupied before the transaction.[25] Mississippi has at the same time expressly declined to allow Marvin-style “palimony” claims.[26]
In some states, a successful claim of unjust enrichment between unmarried partners may require a finding of whether a mutual purpose existed between the parties in order to entertain a claim of an alleged “failed gift” or “breach of implied contract.” If a court finds that a mutual purpose existed, one party is unjustly enriched if that party profited from a significant deviation from the mutual purpose.[27]
Currently, Colorado is the only state that transmutes valid out-of-state same-sex marriages into civil unions to dissolve the relationship. Many couples were married in other jurisdictions before the Civil Union Act took effect on May 1, 2013. Courts may thus need to resort to the doctrines mentioned above in order to ensure that property between the date on the out-of-state marriage license and May 1, 2013, is treated as “marital” during the dissolution proceeding.
c. After entering into a civil union, a couple moved to another state where they eventually separated physically and financially. That state would not terminate their relationship. Now, I am now dissolving their civil union in my state. Am I allowed to toll property gains and thus exclude out-of-state “marital” gains during the period of time the couple was separated and unable to dissolve their relationship?
Maybe. The closest analogy to this situation arises in the context of equitable cross-jurisdictional tolling of state statutes of limitations. State laws concerning the doctrine vary widely, with some permitting it, some not,[28] and there is no case law addressing this issue in the domestic context. Additionally, if the forum state does not recognize civil unions, a court may be wary to apply its laws concerning cross-jurisdictional tolling to foreign subject matter not recognized within its jurisdiction.
If the forum state approves of the doctrine and a court extends its applicability to the dissolution context, a successful plaintiff must prove that either she has been actively mislead by the defendant, was unable to assert her claim due to extraordinary circumstances, or has asserted her claim in the wrong forum.[29] The inability to dissolve one’s relationship out-of-state is arguably an “extraordinary circumstance” for purposes of applying equitable cross-jurisdictional tolling to the computation of out-of-state “marital” gains incident to a civil union dissolution action.
III. Pre-Relationship Agreements
d. A couple executed a valid pre-civil union agreement before entering into a civil union. Do the document's terms still control if the couple gets married later?
Yes. Holding otherwise would defeat the parties’ intent at the time they entered into the agreement and could lead to an inequitable result.
At least one court has directly addressed this issue. Where one party argued that a pre-domestic partnership agreement was invalid due to the fact that the parties subsequently married, the court held that mere change in terminology of parties’ status (from “domestic partners” to “spouses”) did not invalidate the agreement since the parties never intended such a result at the time they entered into the agreement.[30]
e. A couple executed a valid pre-marital agreement before getting married. I am dissolving their marriage as a civil union as required by my state’s statutes. Do the terms of the out-of-state pre-marital agreement still control?
While no published case law has directly addressed this issue, a strong argument exists that, yes, the agreement’s terms are still valid due to the initial intent of the parties and the possibility of an inequitable result. If a mere change in nomenclature of the parties’ status from “domestic partners” to “spouses” did not invalidate their prior pre-domestic partnership agreement,[31] then one can safely assume that an analogous change of the parties’ status from “spouses” to “civil union partners” solely by operation of statute would also fail to invalidate a prior pre-marital agreement.
IV. Parentage
f. If a party to a civil union is entitled to a presumption of parentage under her jurisdiction's Uniform Parentage Act, does this same presumption exist when a parentage contest is brought in another jurisdiction?
Yes. At least one civil union partner’s parentage claim based on a foreign statute (Vermont) survived collateral attack when the opposing party contested the partner’s standing to bring a parentage action in a new jurisdiction (New York). The opposing party claimed that standing must be denied pursuant to New York’s domestic relations statutes since the partner was a non-biological, non-adoptive non-parent. The court upheld the party’s standing in New York, recognized the partner’s entitlement to a parentage presumption pursuant to Vermont’s civil union statute, and awarded fees to the partner.[32] The United States Supreme Court denied certiorari.[33]
V. Constitutional Issues
g. Do recent trends in constitutional jurisprudence justify recognizing civil unions in my jurisdiction?
Yes. While the Supreme Court has not deemed sexual orientation to be a suspect class, courts have still closely scrutinized laws involving lesbian, gay, bisexual, and transgender (“LGBT”) individuals due to concerns about possible discrimination.[34] This has been referred to as a “heightened rational basis” standard of review.
A court may address the constitutionality of local laws interfering with a court’s recognition of same-sex civil unions under this heightened standard. Many courts in several circuits have recently found state laws prohibiting same-sex marriage unconstitutional under either this slightly heightened standard or even traditional rational basis review.[35] These recent decisions also invoke equal protection analysis to invalidate recognition prohibitions.[36] Analogizing judicial invalidations of these laws to similar laws preventing recognition of out-of-state civil unions does not require any court to make a gargantuan analytical leap.
h. Does the Full Faith & Credit Clause require me to recognize an out-of-state decree of civil union dissolution?
Yes. Traditionally, decrees of relationship dissolution, even for relationships whose formation would be have been disallowed in the forum state, are automatically entitled to full faith and credit as a sister-state judicial proceeding.[37] Moreover, the US Supreme Court has squarely stated that there is no “public policy exception” to the recognition and enforcement of an out-of-state dissolution decree.[38]
However, “incidental benefits” of a foreign-state judgment, such as the ability to revise a birth certificate pursuant to a valid out-of-state adoption judgment, are governed by forum law.[39] Such incidental benefits are therefore not covered under the purview of the federal Full Faith and Credit Clause, unlike the judgment itself.[40]
i. Does the Full Faith & Credit Clause require me to recognize an out-of-state civil union certificate?
No. As currently interpreted, the Clause applies uniquely to judgments. A state’s issuance of marriage licenses is not a “judicial proceeding” under the Clause entitled to automatic recognition outside of the issuing state.
j. Does the Full Faith & Credit clause require me to recognize an out-of-state adjudication of parentage based the parent's status as a party to a civil union?
Yes. As a judgment, an adjudication of parentage is a judicial proceeding as defined in the Clause and must be given recognition by a sister state. This applies regardless of whether the issuing state’s statutory source for the initial judgment mirrors the forum state’s own statutes. At least one court has directly addressed this issue: Texas upheld California’s parentage adjudication incident to a custody action under the Uniform Child Custody Jurisdiction and Enforcement Act in favor of a same-sex, former domestic partner when the adjudication was subsequently attacked collaterally in Texas.[41] Texas may not have adjudicated the initial parentage determination in the same manner, but it was still required to uphold the California judgment once made.[42]
VI. Other Legal Consequences to Consider at Time of Dissolution
Federal Tax Considerations
k. Is maintenance I may order as part of a civil union dissolution deductible from gross income for the payor under the Internal Revenue Code (“IRC”)?
Probably not. While tax courts tend to liberally construe the IRC’s definition of “alimony” under §71(b)(1),[43] the IRS has recently clarified that for other tax purposes, such as the ability to jointly file, civil union partners are not “spouses” under the IRC.[44] Even though these clarifications do not directly state whether a “former spouse” under the IRC may include a former civil union partner for purposes of alimony deductibility, such an interpretation seems unlikely.
It is unclear whether a party with a valid out-of-state marriage license who dissolves her relationship as a civil union in Colorado would be able to deduct alimony payments.
l. Are property transfers I may order incident to a civil union dissolution tax-free under the IRC?
No, for same reasons above. Such transfers must be included in gross income under § 61(a).
m. Are other family and spousal restrictions in the IRC applicable to civil union partners?
No, for same reasons above.
State Tax Issues
n. My state incorporates figures from federal tax returns into state tax returns. If civil union parties are prevented from filing jointly federally, does this mean they are automatically prohibited from filing jointly at the state level?