Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

New Jersey Same Sex (or Gay) Couples May Legally Divorce Based Upon Irreconcilable Differences

During my 20 years career as a divorce and family lawyer, I have closely watched the progression of gay marriage here in New Jersey.  As my law firm has handled many same sex divorce and civil union dissolutions, I was pleased to see that these couples may now proceed under irreconcilable differences.  This is significant because it is much less antagonistically and therefore promotes amicable resolutions and settlements.  Following please find an overview.

In the landmark decision of Garden State Equality v. Dow, the New Jersey Supreme Court stated that same sex marriages would be recognized in New Jersey. Therefore, the divorce statute that applied to heterosexual marriages would also apply to same sex marriages. That meant that same sex couples could now divorce on no-fault grounds as well. Although the decision was revolutionary, same-sex couples in civil unions began to wonder if they could end their unions on no fault grounds too. That question went unanswered, until recently in the case of Groh v. Groh, where the court said that civil unions could be dissolved based on irreconcilable differences as well. Let’s take a closer look.

In the case the parties entered into a civil union in 2008. Five years later, the plaintiff filed a complaint and the defendant filed a counterclaim both seeking a judgment dissolving the union on no-fault grounds of irreconcilable differences. The parties amicably resolved all of their other issues by entering into a settlement agreement. On March 12, 2014, the parties appeared before the court seeking to conclude the proceedings via a dual judgment of dissolution. However, the applicable statute governing civil unions, N.J.S.A. 2A:34-2.1, did not recognize irreconcilable differences as a legal ground for dissolution.

The Superior Court of New Jersey, Chancery Division, Ocean County began its analysis by turning to the case of Lewis v. Harris, decided in 2006. In that case, the New Jersey Supreme Court held that “unequal dispensation of rights and benefits to committed same sex partners can no longer be tolerated under our State Constitution and that same sex couples in committed relationships should have rights, benefits, and responsibilities similar to those enjoyed by married heterosexual couples.”

As a response in December 2006, the Legislature enacted the New Jersey Civil Union Act. Pursuant to the Act, same sex couples were allowed to enter into civil unions, a legislatively created status, which provided new statutory rights to same sex couples besides the right to formally marry each other. Additionally, the statute provided for legal dissolution of civil unions. In particular, the Act authorized the courts to dissolve civil unions for any of the following reasons:

(1)  voluntary sex between a person in the civil union and someone other that the person’s partner

(2)  willful and continued desertion for twelve or more consecutive months

(3)  extreme cruelty

(4)  separation for at least eighteen consecutive months with no reasonable hope of reconciliation

(5)  voluntarily induced addiction or habituation to any narcotic drug or alcohol for twelve or more consecutive months

(6)  institutionalization for a mental illness for twenty-four or more consecutive months

(7)  imprisonment of the defendant for eighteen or more consecutive months

Notably, the list did not include a cause of action for dissolution of a civil union based upon the no-fault ground of irreconcilable differences. However, no one thought twice about this because in 2006, heterosexual couples were not legally allowed to terminate their marriages based upon irreconcilable differences either. Other than the cause of action for adultery, the statute for dissolution of a marriage under N.J.S.A. 2A:34-2 and dissolution of a civil union under N.J.S.A. 2A:34-2.1 were the same.

The court then looked to public law to further its analysis. On January 20, 2007 P.L. 2007, c. 6 was signed into effect. That law amended the statutory causes of action for divorce to allow married couples to dissolve their marriages on the no-fault ground of irreconcilable differences. However, the amendment did not expressly amend the civil union statute to include irreconcilable differences in the list of causes of action for dissolution.

Yet, pursuant to N.J.S.A. 37:1-33, which stated that any law which references marriages shall include a civil union, it seemed logical to amend the civil union statute to include irreconcilable differences. Since there was no reasonable basis to find that the Legislature intended an unequal and unconstitutional result, it seemed logical to conclude that omitting irreconcilable differences from the civil union statute was unintentional. Additionally, looking to public policy, the courts believed that from a legal and social standpoint, no-fault domestic litigation was preferable to fault-based domestic litigation, no matter who the litigants would be.

Lastly, the court looked to the case of Garden State Equality v. Dow, decided in 2013. The Chancery Court believed that since New Jersey now recognized same sex marriage and a same sex married couple’s right to divorce on the grounds of irreconcilable differences, there was no reason why it should not allow same sex couples in civil unions to dissolve their unions based on irreconcilable differences too.

Ultimately, the Groh court held that same sex civil unions could be dissolved based on irreconcilable differences, yet another milestone in New Jersey family law. For more questions or to dissolve your same sex civil union today, please contact my office.