Features
Civil Dissolutions
Community Compass
Civil Dissolutions
Out-of-Staters
Find Breaking Up
a Civil Union is Hard to Do
by Jenn Baudreau
In
2001 Karen Welthy and her partner traveled to Vermont from their home
state of New York to make a public commitment to one another by entering
into a civil union. Unfortunately, three years later their relationship
ended. Whereas the process of obtaining the civil union took less than
half an hour – as Welthy is quickly finding out – dissolving
it is not nearly so easy.
In order to dissolve a Vermont
civil union in Vermont, one or both partners need to be residents, the
same requirement as for filing for divorce. With 85 percent of civil unions
going to out-of-state couples, however, that residency requirement poses
a problem. Since – unlike marriage – civil unions are a new
institution, there is little in the way of case law to support someone
like Welthy. That most states do not recognize civil unions as an institution
only increases the difficulty. As Welthy says, "It's like asking
New York to dissolve something it doesn't believe exists."
There has been some encouraging
news on this front. Last month the Iowa Supreme Court decided not to interfere
with a ruling by a lower court to dissolve a lesbian couple’s civil
union. As uplifting as that news is, however, dissolving a civil union
this way is time-consuming and costly, and not everyone is willing to
be thrown into the legal spotlight.
Welthy doesn't feel that
taking her case to court is a viable option for her at this time. "It
would be groundbreaking - and very expensive - for me or any other 'first'
person to try to get a civil union dissolved [in New York]. My lawyer
said that she would love to take the case because it is interesting and
brand new, but there are no guarantees that I would get anywhere with
a judge in New York."
At the moment, Welthy
feels her only real choice is to pay somebody rent here in Vermont, while
continuing to live and work in New York. That way, six months down the
line she can file for the dissolution, and six months after that she can
be granted it. Needless to say, she considers this a frustrating, expensive,
and time-consuming process.
Beth Robinson, an attorney
at Langrock Sperry & Wool, receives "dozens and dozens"
calls about civil union dissolution, many referred by other lawyers. She
believes that civil union dissolution is not a distinct issue, but part
of a broader problem: civil unions are not marriage. "The question
of how civil unions are treated in other states for the purpose of dissolution,
or other benefits for that matter, raises some challenging legal questions,"
Robinson said. "We have centuries of case law dealing with how states
should treat valid marriages from other states – case law that we
could plug into much more easily if we had full equality – i.e.
marriage – for same-sex couples in Vermont."
However, she elaborates
in a later conversation, "The problem for civil union couples from
out of state is with their home state, not with Vermont. There might be
a temptation to help, to make it easier to dissolve a civil union by eliminating
the residency requirement. In 2002, opponents to civil unions attempted
that. [Vermont Freedom to Marry Task Force] argued against that, because
it chips away at marriage parity."
There are also steps that separating
civil union partners can take to protect themselves while waiting for
the legal picture to become clearer, Robinson says. First, get a lawyer
who is both knowledgeable about the jurisdictional issues and plugged
into the gay and lesbian rights issues involved. Some states are willing
to dissolve a civil union without calling it a marriage in order to address
family status matters. Second, consider relocating to a state that would
dissolve the union. Third, take all the legal steps possible to mitigate
the impact of an undissolved civil union, beginning with negotiating a
separation agreement. To ensure the agreement has legal standing within
the partners' state of residence, they should consult a lawyer.
Welthy, for one, feels frustrated
by the legal difficulties surrounding her civil union. "It has become
a big hassle and it offers me no rights in my home state anyway,"
she says. She did, however, find the civil union to be positive in other
ways. "I found the civil union to be emotionally fulfilling. It was
a good experience to have someone in the legal system validate our relationship.
I also thought if I ever had any trouble, I could move to Vermont where
my relationship was protected. So in that regard, it was a positive thing."
Robinson is also quick to point
out that the experience for many out-of-staters with civil unions has
been far from negative. "A New York trial court allowed a surviving
civil union partner to pursue a wrongful death claim based on the death
of his civil union spouse. I've spoken to out-of-staters who have been
able to obtain health insurance, and disability insurance for their partners
through their employers on the basis of their Vermont civil unions. I
even talked to someone in Michigan who was able to register for a family
membership to the local museum on the basis of the civil union."
Clearly the legal confusion
and questions raised by civil unions are far from over, but there is hope.
As Robinson points out, these civil union issues will become moot if we
can achieve equality by replacing civil unions with true marriage.