New Jersey Domestic Partnership Law
Brings Same Sex Couples New Rights
Dateline: July, 2004
The Constitution of the State of New Jersey does not currently provide “marriage” status for same sex couples. Instead, homosexual clients seeking to attain the legal benefits and indices of marriage in the State of New Jersey can obtain many, but not all, of such rights through a civil partnership agreement as a result of the New Jersey legal landscape having been changed by the passage of N.J.S.A. 26:8A-6, the New Jersey Domestic Partnership Law, which was approved on January 12, 2004 and will be effective 180 days thereafter, or on or about July 10, 2004.
The New Jersey Domestic Partnership Law allows civil unions to be formulated as Domestic Partnerships or reciprocal beneficiary relationships, and recognizes civil unions valid under the laws of other states, if the following requirements are met:
1. Both persons have common residences and are otherwise jointly responsible for each other’s common welfare as evidenced by joint financial arrangements or joint ownership of real or personal property, which shall be demonstrated by at least one of the following:
A joint deed, mortgage agreement or lease;
A joint bank account;
Designation of one of the persons as primary beneficiary in the other person’s will;
Designation of one of the persons as primary beneficiary in the other person’s life insurance policy or retirement plan; or
Joint ownership of motor vehicle.
2. Both persons agree to be jointly responsible for each other’s basic living expenses during the domestic partnership;
3. Neither person is in a marriage recognized by New Jersey law or a member of another domestic partnership;
4. Neither person is related to the other by blood or affinity up to and including the fourth degree of consanguinity;
5. Both persons are of the same sex and therefore unable to enter into a marriage with each other that is recognized by New Jersey law, except that two persons who are each 62 years of age or older and not of the same sex may establish a domestic partnership if they meet the requirements set forth in this section;
6. Both persons have chosen to share each other’s lives in a committed relationship with mutual caring;
7. Both persons are at least 18 years of age;
8. Both persons file jointly an Affidavit of Domestic Partnership; and
9. Neither person has been a partner in a Domestic Partnership that was terminated less than 180 days prior to the filing of the current Affidavit of Domestic Partnership, except that this prohibition should not apply if one of the partners died; and, in all cases in which a person registered a prior Domestic Partnership, the Domestic Partnership shall have terminated in accordance with the provisions of N.J.S.A. 26:8A-10.
An Affidavit of Domestic Partnership requires the submitting party to set forth the parties’ name and age, common mailing address and a statement that at the time “the Affidavit is signed, both parties meet the requirements of this Act for entering into a Domestic Partnership and wish enter into a Domestic Partnership with each other" (N.J.S.A. 26:8A-3). The local registrar files the Affidavit of Domestic Partnership and transfers the original affidavits to the Department of Health and Senior Services. These Affidavits are filed with the State Registrar and indexed by the surname of one of the partners, cross-referenced to the other partner (N.J.S.A. 26:8A-9). Upon filing an Affidavit of Domestic Partnership the Registration must issue a Notice of Rights and Obligations of Domestic Partners that advises the potential domestic partners of the procedural requirements to establish, maintain and terminate such a partnership and include information on the Rights and Responsibilities of the partners.
The purpose of the New Jersey law was to provide persons in Domestic Partnerships similar rights and benefits accorded to married couples including, but not limited: to protection through the Law Against Discrimination, N.J.S.A. 10:5-1 et seq.; to protect against Employment Housing and Credit Discrimination; to provide visitation to hospitalized domestic partners and to make medical or legal decisions for the incapacitated partner; and provide an additional exemption from Personal Income Tax and Transfer Inheritance Tax as well as making certain Health and Pension benefits available to same sex domestic partners on the same basis as married persons.
Note however, that the rights and benefits of married couples and same sex couples are not identical. For example, in the absence of a Will, a spouse will receive at least some portion of a decedent's property upon death. A domestic partner is not similarly entitled. If a domestic partner dies without a will, his or her assets will pass to his or her family members, not to the domestic partner. Thus, creating a Will is necessary in this situation to put married couples and domestic partners on equal ground.
The Superior Court of New Jersey has jurisdiction vested to terminate any Domestic Partnership pursuant to the Law including the distribution of jointly held property. The grounds for termination of the Domestic Partnership are the same as under matrimonial actions, namely: Voluntary Intercourse with a Non-Domestic Partner (Adultery in the marital context); desertion for 12 or more months; extreme cruelty; separation of 18 months or more; addiction; institutionalization for a mental illness for 24 or more consecutive months; or imprisonment for 18 or more consecutive months. A non-same sex domestic partnership between individuals over the age of 62 can be terminated by the entry into marriage. N.J.S.A. 26:8A-10.
Although parties may attempt to enter into domestic partnerships without the advice of counsel, it is recommended that interested persons seek the advice of counsel before taking such a step to consider the full ramifications of a domestic partnership. The Law Firm of Fein, Such, Kahn & Shepard, P.C. has the resources available to provide clients interested in Elder Law and Estate Planning, Matrimonial Law or Domestic Partnership matter with creative solutions and representation.
This Article is a service of the Family Law, Estate Planning and Elder Law Practice Areas of Fein, Such, Kahn & Shepard, P.C., 7 Century Drive, Suite 201, Parsippany, NJ 07960. Phone: 973-538-4700. Website: www.feinsuch.com. It does not constitute legal advice nor create an attorney-client relationship. For more information contact Shareholder Deirdre R. Wheatley-Liss, Esq. at dwheatley@feinsuch.com.
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