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Tuesday, Apr. 24, 2001

Since the statute was passed, scores of same-sex couples, a majority of them from out-of-state, have entered into civil unions in Vermont. What these couples may not realize is how difficult it might be to dissolve their unions. Out-of-state same-sex couples, in particular, may face burdens that same-sex couples do not face in Vermont — or, indeed, in any state of the union.

Creating a Civil Union: Quite Simple

A civil union is similar, in many respects, to a marriage. Both confer a legally sanctioned status, the entry into, incidents of, and exit from which are governed by state law. That is, the state decides who can establish a civil union, how they must conduct themselves while it lasts, and how they can dissolve it. The same is true for marriage.

In Vermont, civil unions and marriage are mutually exclusive statuses: civil unions are only available to couples that cannot legally marry in the state. Same-sex couples are thus excluded from marriage, but have access to civil unions, while opposite-sex couples seeking the benefits of a legally recognized relationship must marry to get them.

Procedurally, couples seeking to establish a civil union need only obtain a license from a town clerk and find a valid person (judge, justice of the peace, or ordained clergy) to certify their union. For the union to be valid, each party to it must be over the age of eighteen, mentally competent, and not party to another marriage or civil union.

Dissolving a Civil Union: Quite Hard

Pursuant to the civil union statute, when a civil union fails, the parties must seek dissolution under Vermont's traditional domestic relations laws, in the same family court to which married couples must resort.

Moreover, pursuant to the statute, the same substantive rights and obligations that apply to married couples seeking divorce apply to couples seeking to dissolve a civil union as well. Generally, parties to a civil union seeking a permanent dissolution must get divorced — though a few may qualify for an annulment based on proof of bigamy, fraud, lunacy, or physical incapacity.

Vermont divorce law is typical in that it provides both "fault" and "no-fault" grounds for divorce. The fault grounds permit divorce to be granted based on the imprisonment of one spouse, "intolerable severity," willful desertion, neglect, or insanity. The no-fault ground permits divorce based solely on a six-month separation. The court in a divorce proceeding has the authority to equitably divide property and award spousal support where appropriate.

Vermont divorce law is also typical in that it only grants divorces to residents of the state. To file for divorce, one party to a marriage or civil union must have been a resident for six months; to obtain a divorce, one party must have been a resident for one year preceding the final hearing.

For out-of-state, civil union couples, this may pose a significant obstacle to dissolution. A warring couple who traveled from, say, Oregon to obtain a civil union in Vermont may not be happy to learn that one of the two (and how do they decide which one?) must interrupt his or her life to live in Vermont for a year.

For opposite-sex couples, the situation is quite different. For them, the residency requirement (in Vermont or elsewhere) is generally not problematic. There is no requirement that they get married and divorced in the same state. So New York will freely order that a marriage established in Vermont be dissolved as long as one spouse is a resident of New York. A parting couple need not agree on who lives where; instead, either can get a divorce where he or she lives, as long as certain due process requirements are satisfied.

In short, as long as a party to an opposite-sex marriage is a resident of a state, she has a forum to seek dissolution of her marriage. The problem for same-sex couples, however, is that other states may not agree to dissolve a Vermont civil union.

The Problem of "Full Faith and Credit" for Civil Unions

Whether a civil union has any legal significance outside of Vermont is uncertain. Generally, states are required by the U.S. Constitution and by federal statute to give "full faith and credit" to the acts, records, and proceedings of other states. But it is not clear whether this clause would require other states to recognize Vermont's civil unions — for the purpose of either awarding benefits, or granting divorces.

With respect to marriage, states will generally recognize a marriage validly established elsewhere as long as the couple did not get married in another state to avoid their home state's own restrictions. A couple married in New Hampshire but residing in New Jersey can, for example, file their New Jersey tax return as "married filing jointly," because New Jersey will give full faith and credit to New Hampshire's marriage certificate.

But even though states are required to recognize marriages formed elsewhere, they may not be required to recognize Vermont civil unions. That is because there is arguably an exception to the "full faith and credit" requirement that says states do not have to recognize the acts of other states if doing so would be inconsistent with the public policy of their own state.

The Defense of Marriage Act: Further Difficulties for Civil Unions

Some States Have Yet to Speak Out on Recognizing Vermont Civil Unions

Thus far, there has been little response on the specific issue of whether states will recognize Vermont civil unions. The attorney general of Illinois, however, recently issued an opinion indicating that Illinois, for one, will not.

He interpreted the Constitution and DOMA to say that states are not required to recognize civil unions if they have a policy against them. Because of Illinois' express prohibition on same-sex marriage, the attorney general concluded that Illinois had a strong public policy against recognizing any marriage-like relationship between same-sex couples, even if such a relationship is created in a state that sanctions it.

As parties to civil unions seek to claim benefits under them or to dissolve them outside of Vermont, the validity of civil unions outside of Vermont will undoubtedly be litigated around the country, resolving some of these open questions. (The constitutionality of DOMA will undoubtedly also be tested). But until then, parties to a civil union who drove or flew to Vermont for a romantic weekend wedding may now be stuck in that union — unless, that is, one partner is willing to move to Vermont.

Civil Union Politics: Why The Effect on Out-of-Staters Was Intentional

Interestingly, the requirement that a civil union be dissolved only through conventional means — despite the difficulty it may pose for out-of-state couples — was not the product of an oversight of the Vermont legislature. Rather, it was central to the statute's purpose.

One of the findings made by the Vermont legislature was that the state has an interest in protecting family members from the economic and social consequences of abandonment and divorce. For opposite-sex couples, this protection is found in marriage, which imposes responsibilities on each spouse with respect to the other.

These responsibilities are enforced by requiring either spouse to seek permission of the state–through a separation, divorce or annulment proceeding–to leave the relationship. During that proceeding, the state has the opportunity to protect an economically vulnerable spouse by ordering the payment of support or a favorable division of property. The civil union law is expressly designed to extend that same protection to same-sex couples.

Accordingly, many advocates of same-sex marriage, including Yale Law Professor William Eskridge, praise the Vermont civil union law precisely because it imposes obligations that cannot be avoided unilaterally. Hawaii and a variety of municipalities have domestic partnership rules that permit same-sex couples to register for limited, reciprocal benefits. But all permit these relationships to be dissolved unilaterally. Vermont, in fact, offers this less-involved status as an alternative to civil unions.

Thus, the Vermont legislature clearly intended to impose mutual legal obligations on partners to a civil union that the partners could not easily avoid. But it also recognized that the residency requirement may result in undue hardship.

Vermont therefore created the Vermont Civil Union Review Commission, charged with implementing the civil union statute and, more specifically, paying attention to whether the residency requirement is too onerous. The Commission may ultimately recommend that the residency requirement be shortened or eliminated for civil unions–but not for marriages–if it turns out that other states will not dissolve civil unions for their own residents.

It may also come to pass that Vermont will only allow its own residents to enter into civil unions. There has been some political agitating for such an amendment to the law, though the tourist lobby in the state would clearly put up a fight: Those civil unions support a lot of bed-and-breakfasts, florists, and the like.

For now, civil unions should be entered into cautiously, with the knowledge that while you may be making history now, if your relationship itself becomes history later, the quickie divorce opposite-sex couples enjoy may elude you.

Joanna Grossman, a FindLaw columnist, is an associate professor of law at Hofstra University, where she teaches Trusts and Estates and Sex Discrimination, among other subjects. She has also written for FindLaw's Writ on adult adoption as an estate planning device for gay partners, in a column which may be found in the archive of her pieces on the site.

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