There’s Something About Marriage: New York Trial Court Uses Differences Between a Marriage and a Civil Union to Refuse to Dissolve the Latter

Norma Gay

“Civil union” means that two eligible persons have established a relationship pursuant to this chapter, and may receive the benefits and protections and be subject to the responsibilities of spouses.

-Vermont Stat. Ann., Title 15, Section 1201(2)

(a) Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law or any other source of civil law, as are granted to spouses in a marriage.

(b) A party to a civil union shall be included in any definition or use of the terms “spouse,” “family,” “immediate family,” “dependent,” “next of kin,” and other terms that denote the spousal relationship, as those terms are used throughout the law.

(c) Parties to a civil union shall be responsible for the support of one another to the same degree and in the same manner as prescribed under law for married persons.

-Vermont Stat. Ann., Title 15, Section 1204(a)-(c)

Postscript by the New York Supreme Court, Westchester County: Well, not really. Oh, and certainly not if you leave Vermont!

In B.S. v. F.B., 2009 WL 2195786 (N.Y. Sup. 2009), B.S. and F.B., entered into a “Civil Union” in Vermont in 2003. According to the plaintiff,

during the course of their relationship, defendant became an alcoholic and on numerous occasions became abusive both verbally and physically towards plaintiff. Plaintiff state[d] that defendant began an intimate relationship with another woman and in October 2008 defendant told plaintiff that she wanted to divorce and wanted plaintiff to move out of the house.

The problem? At the time, B.S. and F.B. were living in New York and did “not meet the residency requirements to commence an action in Vermont to dissolve their union.” So, could the plaintiff have the “Civil Union” dissolved in New York? According to the Supreme Court, Westchester County, the answer was “no.”

The court began by noting that it was dealing with “a novel issue previously unaddressed by New York courts”: “Where, as is the case in New York, their current domicile does not provide for civil unions,…[can] courts of the state…recognize the civil union for the purposes of dissolving it[?]” Then, the court summed up prior precedent as follows: “[T]he essential predicate for each judicial determination is the existence of a valid marriage.”

And that was the problem for the plaintiff. According to the court,

While falling short of placing a civil union on the same level as a valid marriage, New York has evidenced by executive and local orders a clear commitment to respect, uphold and protect parties to same sex relationships and their families….The Vermont Legislature’s decision to create a civil union was an recognition of the right of same sex couples to have some legal protections and some of the rights and responsibilities of opposite sex married people….But in enacting the statute Vermont also evidenced a reluctance to extend the right to “marry” to same sex couples. The New York State Bar Association’s May 4, 2009 “Report and Recommendation on Marriage Rights for Same Sex Couples”, finds that the civil union model although intended to provide equality, in fact, has created a separate legal status with inherent disadvantages, unequal and uncertain legal rights and problems of portability crossing state lines.

The court did hint that there might be other ways for the plaintiff to resolve her “Civil Union,” but the way in which any married person could have achieved a dissolution of her marriage was not one of them.

There is, however, another, somewhat happy postscript to the matter: Same-sex marriage becomes legal in Vermont on September 1. That will do a lot of good for a lot of people, but it won’t be of any help to those who entered into “Civil Unions” in Vermont before that date and those who will continue to enter into them in other states, at least to the extent that those people travel to the Big Apple and want to dissolve their unions.

-Colin Miller

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5 Responses to There’s Something About Marriage: New York Trial Court Uses Differences Between a Marriage and a Civil Union to Refuse to Dissolve the Latter

  1. David S. Cohen says:

    When Vermont first instituted civil unions, there was a rush of people who went there to get one. But then people started thinking about the long-term consequences. What if a couple got a civil union in VT then went back to living in, say, Oregon. They drift apart and figure that their civil union is only good in VT, so no big deal. Twenty years down the line, one of them wants to get married in Oregon — either same-sex or opposite-sex, no difference. But now there’s this VT civil union hanging over them that they have to figure out the legal ramifications for twenty years down the line. I know a bunch of people who gave the rush to VT second thought for these reasons.

  2. bob coley jr says:

    It seems that the “intent” of civil union language is not to provide an equality with “marriage” but to enshrine the differential in a legal context. The legal value of the words can be settled quite easily if only the resultant legalities were equal too. “CIVIL UNION = MARRIAGE” would negate the need for any other explanation of of this subject. Besides any non-civil objections that fly in the face of equality, there seems to be a subterfuge involved. “We did something you wanted, but not really” is the tack most political decisions seem to sail. We know what’s going on here: spin disguised in legal wording to avoid telling what we mean or think.

  3. bob coley jr says:

    The example that Mr. Cohen discusses above is, or should be, the same one that anyone should consider in any contract. One’s problems don’t go away just by ignoring them or moving. They must be handled appropriately. So, a failed civil union SHOULD carry the same burden as a failed marriage. Time or state is not the problem as stated, it is fear of failure of a long-term legal contract and the dissolution thereof. Same reasons some people don’t get married anywhere, anytime, to anybody. The burden of getting out should be equally doable if getting in is. The trouble seems to be in the fine print, or in some people’s reluctance to think long-term. The former can be changed/fixed with laws, the latter is a personal issue.

  4. David S. Cohen says:

    The trouble with getting out of a civil union is that, at least when only VT was giving them, you had to live there for a year to get a divorce. So, couples that went there to get the civil union but didn’t live there were stuck — their home state wouldn’t recognize the civil union so they couldn’t divorce there, but they didn’t want to have to live in VT for a year to get the VT divorce. So, what were they left to do? Ignore the civil union and hope it never becomes an issue . . . until it does.

  5. bob coley jr says:

    Traveling to another state to make use of it’s laws comes with strings. That is why I agree with the decision not to enter into any contract without thinking of the long-term consequences. If one is seriously committed, not wanting to do what it takes should not be the ultimate barrier. Or to dissolve something either. One of the reasons for waiting periods, or cooling off periods, is to make people think long and hard before making such decisions. I am glad to hear some people DO think before they act. And ignoring something is not the answer, well maybe for insults and such. This would seem to be the problem with States Rights in many cases. Some areas should be universal and Federal. A inter-state arch relieves the need for inter-state travel. We need this matter to be the same for all citizens in all parts of the country, as I’m sure is obvious. I know the States Rights argument is used to thwart as much as protect. The federal case here is needed to stop the bickering and division but too many states would object.

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