Lawsuit Filed Challenging CO’s Same-Sex Marriage Ban

coloradoStateSeal-300x300A couple in Adams County recently filed a lawsuit in Adams County District Court challenging Colorado’s Amendment 43 of Colorado’s state constitution, which defines marriage as only between a man and a woman and effectively bans same-sex marriage.  In their lawsuit, they contend that Amendment 43 violates the equal protection and due process rights of same-sex residents of Colorado.

Amendment 43 was passed by a vote of the people in November 2006. As a result, there are essentially two avenues to remove the state law ban against same-sex marriage: litigation or the ballot box. Challenging the ban is crucial for Colorado’s same-sex couples; however, many members of the LGBT community and their allies were hoping to challenge the ban through the ballot box rather than litigation for a number of reasons. In all likelihood, this lawsuit will be removed to federal district court (the federal court enjoys jurisdiction should the State of Colorado choose to remove the case to that venue because the challenge to Amendment 43 is partially brought under and based upon federal law). Should this occur, then even if the couple is successful in federal district court, any appeal will be heard by the Tenth Circuit Court of Appeals. The states that make up the Tenth Circuit are not only Colorado but also Oklahoma, New Mexico, Kansas, Utah and Wyoming. Presently, the Tenth Circuit is considered an extremely conservative bench, a view supported by the rulings that Circuit has issued in recent years.  Many believe that a loss at the Circuit court level would be not only devastating to the LGBT community and its allies in their attempt to repeal Amendment 43, it also would not be a beneficial posture in which to appeal the decision to the U.S. Supreme Court.  Litigation of this type can take many years, as we witnessed with the Proposition 8 case out of California. As such, we anticipate the fight for marriage equality in Colorado will continue on both fronts – litigation and the ballot box.

Since early September, One Colorado has been hosting a Pathway to Marriage Tour throughout the State of Colorado.  In doing so, they are engaging community members in discussions regarding their thoughts and ideas on the best way to approach Amendment 43 and winning marriage equality for our state.  The following dates are remaining on their tour – November 6th: Colorado Springs, November 7th: Denver, November 13th: Lakewood, November 14th: Longmont, November 20th: Highlands Ranch, November 21st: Boulder.  To learn more about the Tour and/or to sign up for a meeting in your community, go here.

Military Veterans Benefits will be Extended to Same-Sex Married Spouses

images-1The Department of Defense announced today that spouses of gay military members will be eligible to receive veterans benefits.  This is the latest announcement regarding the effects of the Windsor decision in which Section III of DOMA, limiting the definition of marriage to be between one man and one woman for federal law purposes, was found unconstitutional.

The Department of Defense had previously announced that military benefits would be extended to same-sex spouses. However, a decision on veteran’s benefits had been delayed because those benefits were separately governed under Title 38 of the U.S. Code, which includes its own provision defining marriage between a man and a woman. The Justice Department recently advised the Obama Administration that it considered Title 38’s definition of marriage unconstitutional for the same reasons as set forth in the Windsor decision. Following that advisement, Attorney General Eric Holder announced today that President Obama has directed the Executive Branch to take steps allowing for same-sex spouses of military veterans to collect federal benefits. The announcement comes after the House Bipartisan Legal Advisory Group (BLAG) recently decided to stop defending the Title 38 provisions in pending cases. Additionally, last week, a federal district court in California held the Title 38 provisions unconstitutional on equal protection grounds.

This decision clears the way for the same-sex spouses of military veterans to receive all veteran’s benefits, which include health care, disability and survival benefits and burials in national cemeteries.  The letter from the Attorney General to Congress outlining the decision can be read here.

IRS: All Same-Sex Marriages Recognized for Federal Tax Purposes

imagesThe IRS has announced that it will recognize all legal same-sex marriages for federal tax purposes, regardless of where the couple resides. Thus, even if a same-sex couple lives in or moves to a non-recognition state, such as Colorado, if they have obtained a marriage in a recognition state, then they will be treated as married for purposes of federal tax law.

The primary highlights of today’s announcement are:

– Same-sex couples will be treated as married for all federal tax purposes, including income and gift and estate taxes. The ruling applies to all federal tax provisions where marriage is a factor, including filing status, claiming personal and dependency exemptions, taking the standard deduction, employee benefits, contributing to an IRA, and claiming the earned income tax credit or child tax credit.

– Individuals who were in same-sex marriages may, but are not required to, file original or amended returns choosing to be treated as married for federal tax purposes for one or more prior tax years still open under the statute of limitations.  Generally, the statute of limitations for filing a refund claim is three years from the date the return was filed or two years from the date the tax was paid, whichever is later. As a result, refund claims can still be filed for tax years 2010, 2011, and 2012.

– Employees who purchased same-sex spouse health insurance coverage from their employers on an after-tax basis may treat the amounts paid for that coverage as pre-tax and excludable from income.

To read the announcement in its entirety, go here.

Social Security Administration announces regulations for same-sex marriage claims

ssa_fB_Logo-e1373909751753Since the Supreme Court issued the Windsor decision in late June declaring Section 3 of DOMA unconstitutional, we have been awaiting clarification on exactly how federal benefits will be applied nationwide to same-sex married couples. If a same-sex married couple lives in a state that recognizes their marriage, i.e., a “recognition state,” then it is fairly clear that most federal benefits and burdens will indeed apply to that couple. However, if a same-sex married couple lives in a state that does not recognize their marriage, i.e., a “non-recognition state,” then the availability of federal benefits and burdens is unclear, and many will not apply.  The latest clarification to be released pertains to Social Security claims for same-sex spouses, officially referred to as “Windsor same-sex marriage claims.”

As of now, Social Security claims will be based upon the law of the couple’s state of residence.  Thus, only married same-sex couples who live in a state that recognizes their marriages will be eligible to receive the Social Security spousal benefit.  The decision appears to be based upon a regulation pertaining to Social Security claims that states a marriage is valid for Social Security purposes “if the courts of the State in which such insured individual is domiciled … would find that such applicant and such insured individual were validly married.”  To read the official release from the Social Security Administration, go here.

Other federal benefits and burdens that have been addressed since June include federal employee benefits, military spousal benefits and immigration.  Each of those have been applied more generously, based upon the state of celebration rather than of residence. The Office of Personnel Management released a Memorandum explaining that for purposes of federal employee benefits, the government will look to the state of celebration rather than the state of residence to determine whether federal employees can cover their same-sex spouses.  In other words, if a federal employee is in a same-sex marriage obtained in a state , that employee can cover his spouse under his federal employee benefits, regardless of where that couple resides. Similarly, the Department of Defense announced that spousal military benefits will be extended to the same-sex spouse of a military member, regardless of whether that couple lives in a recognition or non-recognition state.  Finally, Immigration and Naturalization Services now looks only to the state of celebration to determine whether a same-sex couple is entitled to spousal protection for immigration purposes, regardless of where they reside.

 

The Supreme Court Dismisses California’s Prop. 8

images-1On June 26, 2013, the U.S. Supreme Court issued their much anticipated decisions regarding the constitutionality of DOMA and Prop. 8. The Windsor decision, regarding DOMA, is addressed in the previous blog post. The Hollingsworth decision, regarding Prop. 8, is addressed below.

Hollingsworth v. Perry, Prop. 8

After the two couples challenging the constitutionality of Prop. 8 won in District Court, the State of California declined to appeal the ruling.  The proponents of Prop. 8 responsible for getting it on the ballot through the initiative process stepped in to appeal. When the Supreme Court granted certiorari, it specifically asked the parties to address whether the proponents of Prop. 8 had standing to bring the appeal.  In general terms, standing requires the party to have a specific legal or tangible harm that the court can remedy.

In a 5-4 decision written by Chief Justice Roberts, the Supreme Court dismissed the case based on its finding that the proponents of Prop. 8 did not have proper legal standing to appeal the lower court ruling. Proponents had argued that their participation in California’s initiative process in getting Prop. 8 on the ballot gave them a unique interest.  However, the Court disagreed, explaining that once Prop. 8 was approved, those who were involved in getting it on the ballot did not have any specialized interest in the law that was distinguishable beyond that of any other California citizen. “No matter how deeply committed petitioners may be to upholding Proposition 8 or how zealous their advocacy, that is not a ‘particularized interest’ sufficient to create [a basis for legal standing] … We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to do so. We decline to do so for the first time here.”

Based on this ruling, the Ninth Circuit opinion is vacated and the district court ruling remains in place. The practical effect of this decision is that Prop. 8 is history, mostly.  The truth is that technically, a district court can only make rulings that apply to the parties before it, rather than statewide.  Thus, the district court ruling could only apply to the two couples who challenged Prop 8 in court.  However, following the Supreme Court’s ruling, California Governor Jerry Brown directed state officials to begin issuing same-sex marriage licenses as soon as the Ninth Circuit lifts the previous stay on those marriages. Though it’s impossible to say for sure how long it will take, same-sex marriages will likely begin again in California in approximately thirty days from the date of the Supreme Court’s ruling.

Read the opinion in its entirety here.

The Supreme Court Rules DOMA Unconstitutional

imagesOn June 26, 2013, the ten-year anniversary of the historic Lawrence v. Texas decision, the U.S. Supreme Court issued their much anticipated decisions regarding the constitutionality of DOMA and Prop 8. The Windsor decision, regarding DOMA, is addressed below. The Hollingsworth decision, regarding Prop 8, will be addressed in a separate post to follow.

U.S. v. Windsor, DOMA

In a 5-4 decision written by Justice Kennedy, the Supreme Court held that Section 3 of DOMA was unconstitutional as violating the equal protection and due process rights of same-sex married couples. The Court consistently referred to the States’ exclusive authority to define marriage. However, the Court did not limit its ruling to the federal government’s constitutional overreach in defining marriage on the federal level.  Instead, it went further, finding that by taking a state-conferred status away from same-sex married couples based solely on discriminatory animus, DOMA deprived them of the liberty and equal protection guaranteed to them under the Constitution.

Justice Kennedy wrote at length about the over 1000 federal rights, benefits and responsibilities impacted by DOMA, including Social Security, housing, taxes, veterans’ benefits and healthcare benefits, that are withheld from same-sex married couples.  However, there were two other themes that stood out within his opinion: dignity through equality and children.  He noted that New York had used its exclusive and inherent authority to define marital relations to include same-sex couples and in doing so, “conferred upon them a dignity and status of immense import” and yet, “DOMA seeks to injure the very class of people New York seeks to protect.”

Relying on DOMA’s own text and legislative history, he concluded, “[I]nterference with the equal dignity of same-sex marriages … was more than an incidental effect of [DOMA]. It was its essence. … When New York adopted a law to permit same-sex marriage, it sought to eliminate inequality; but DOMA frustrates that objective … and writes inequality into the entire United States Code.”

With regard to the children of same-sex families, Justice Kennedy stated, “[DOMA] humiliates tens of thousands of children now being raised by same-sex couples. [It] makes it even more difficult for the children to understand the integrity and closeness of their own family. … It imposes a disability on [these couples] by refusing to acknowledge a status the State finds to be dignified and proper.  DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.  [DOMA] is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”  Based on these findings, the Court held that Section 3 of DOMA is unconstitutional as a deprivation of equal liberty protected by the Fifth Amendment.

The reference to children is noteworthy because opponents of marriage equality have so often relied on alleged harms to children raised in same-sex families. However, with the Windsor decision, the Supreme Court has somewhat turned that argument on its head.  That portion of the opinion is premised on a belief that children in same-sex families are not harmed by their family but by discriminatory laws aimed at their family.

The effect of the Windsor decision in advancing gay rights cannot be overstated.  However, it will likely only immediately affect those couples who live in states that have marriage equality.  It does not change the current status of same-sex couples joined in civil unions under Colorado law.  Colorado’s Amendment 43 currently limits marriage to one man and one woman and will have to be repealed by a vote of the people.  The earliest that question can be on the ballot is November 2014.

Whether the Court’s decision to decide the case based on principles of equal protection and due process provides a basis to argue against state-law same-sex marriage bans remains to be seen.  Certainly on its face, the Court tailored the ruling to the State’s authority to define marriage, but the opinion and the legal authority upon which the Court chose to rely does not necessarily close the door to the expansion of further rights.  It seems certain future courts will be given the opportunity to weigh in on those issues.

Read the opinion in its entirety here.

______________

Note: The DOMA case also included a question of whether the United States had standing to bring the appeal since it actually agreed with the lower court ruling and did not defend the law on appeal.  Prior to ruling on the merits, the Court found that because the United States was under an Order from the lower court to refund Ms. Windsor the $350,000+ her late spouse’s estate had paid in taxes, then it had a real and immediate injury as required to establish standing.

 

Refusing to Allow a Transgender Student to Use the Gender-Segregated Restroom that is Consistent with Their Gender Identity is Unlawful Discrimination

On June 17, 2013, the Colorado Civil Rights Division (“CCRD”) issued a Determination in the Charge of Discrimination filed by Coy Mathis (Ms. Mathis), by and through her parents, Jeremy and Kathryn Mathis, against Fountain-Fort Carson School District 8 (“School”).   CCRD found that the School had engaged in unlawful discrimination when they refused to allow Ms. Mathis, a transgender student, use of the girls’ restroom, which was consistent with her sex and gender identity.  This is a finding that is likely to impact not only schools, but also other public accommodation facilities.

On February 7, 2013, the parents of Coy Mathis, a Colorado first-grader, (normally we would not identify a minor by name; however, this individual has been identified by her parents in numerous media forums as well as in the ruling that is attached), filed a complaint with the CCRD.  The complaint alleged that Ms. Mathis’ school had “denied her equal terms and conditions of service of goods, services, benefits, or privileges; equal treatment based upon harassment; and the full and equal enjoyment of goods, services, facilities, privileges advantages or accommodations of a place of public accommodation due to her sex (female) and sexual orientation (transgender).” (see Determination, attached below).  The allegations were that Ms. Mathis was allowed to use the girls’ restroom during her kindergarten year and then again during the first part of her first-grade year; however, in December of 2012, Ms. Mathis’ parents were notified that Ms. Mathis would no longer be allowed to use the girls’ restroom and would instead need to use either the boys’ restroom or one of two single-user restrooms – the adult staff restroom or the health office restroom.  Ms. Mathis’ parents attempted to resolve the issue with the school, but the school refused to reconsider their decision.  As a result, the Mathis family filed their complaint with the CCRD, and that filing led to the June 17th determination.

The Colorado Anti-Discrimination Act (“CADA”) provides that discrimination in the areas of employment, housing, and public accommodations because of an individual’s or group’s protected class/characteristic is unlawful.  Sexual Orientation, whether actual or perceived, is a protected class/characteristic under Colorado law.  Furthermore, sexual orientation is defined as heterosexuality, homosexuality (lesbian or gay), bisexuality, and transgender status (transgender status means a gender identity or gender expression that differ from societal expectations based upon gender assigned at birth).  CADA also grants the Colorado Civil Rights Commission with authority to adopt regulations to interpret, implement, and aid in the enforcement of CADA.  As part of those efforts, the Commission has previously addressed restroom usage for transgender people by adopting Rule 81.11, which provides, in part:

  • (A) Nothing in the Act prohibits segregation of facilities on the basis of gender.
  • (B) All covered entities shall allow individuals the use of gender-segregated facilities that are consistent with their gender identity.  Gender-segregated facilities include, but are not limited to, restrooms, locker rooms, dressing roos, and dormitories.

In applying the provisions of CADA, as well as the regulations adopted by the Colorado Civil Rights Commission, the CCRD found that the actions of the School were discriminatory.  The CCRD noted that Ms. Mathis’ birth certificate identified her as “male,” but found that the “Division must weigh the totality of the evidence and rely on the most current legal documents to determine the Charging Party’s sex and gender.”  As such, the CCRD found that the weight of the evidence supported finding Ms. Mathis’ sex as female.  The CCRD then found that by not permitting Ms. Mathis to use the restroom with which she identified, the School was treating her less favorably than other students seeking the same service.  That finding established a case of discriminatory terms and conditions of services prohibited by the CADA.  The CCRD also found that a case of discriminatory harassment was established, noting that by telling Ms. Mathis “she must disregard her identity while performing one of the most essential human functions constitutes severe and pervasive treatment, and creates an environment that is objectively and subjectively hostile, intimidating or offensive.”  Finally, the CCRD also found that a case of discriminatory denial of services had been established.  For this claim the School’s argument was that they had provided an alternate restroom to Ms. Mathis by providing the use of one of two single-use restrooms.  The CCRD rejected that argument citing the “separate but equal” philosophy and noting that, “at least in terms of protected classes, [] separate is very rarely, if ever, equal.”  The CCRD found that offering alternate restrooms such as the School did in this case, does not constitute “services” sufficient to meet Ms. Mathis’ needs.

Now that the CCRD has reached a determination, the matter is referred to the CCRD’s mandatory conciliation program to see if an amicable resolution can be reached.  If there is an agreed resolution it is possible that the agreement will not be released to the public.  If no agreement is reached, the matter may head to the courts for a resolution. Either way, the CCRD’s Determination letter is likely to be extremely helpful in other cases of alleged discrimination based upon sexual orientation by public accommodations.

You can review the complete Determination letter here.

Failing to Update Your Life Insurance Beneficiary May Mean Your Ex-Spouse/Partner Receives the Proceeds

S.Ct. BuildingRarely does the Supreme Court weigh in on issues related to estate planning but in this term, it did just that.  The Court’s decision In Hillman v. Maretta centered on what happens when a decedent’s life insurance beneficiary is his ex-spouse, i.e., the decedent did not change the beneficiary designation after their divorce. Many states have laws addressing this circumstance. For example, in Colorado, state law dictates that upon divorce, any life insurance beneficiary designation naming the person’s ex-spouse is automatically revoked.  Virginia law, the state out of which the Hillman decision arose, has a similar law.  The Virginia law is two-fold.  First, it provides any designation of a spouse is deemed revoked upon divorce and the proceeds will be distributed as if the designation had never been made.  Second, it provides if the first part of the law is held to be preempted, then whoever would be entitled to the life insurance proceeds under state law may sue the former spouse to recover any proceeds paid.

In Hillman, the decedent was a federal employee and the life insurance policy at issue fell under the Federal Employees’ Group Life Insurance Act (FEGLIA).  FEGLIA provides that the proceeds of federal life insurance policies shall be paid to designated beneficiaries before anyone else.  There was no disagreement among the parties that FEGLIA preempted the first part of the Virginia state law regarding automatic revocation of an ex-spouse beneficiary. However, the dispute centered on the second part and those defending the state law argued that in FEGLIA, Congress was merely striving for the administrative convenience of knowing where to pay the funds, a convenience not disturbed by a subsequent lawsuit between the parties to recover those funds.

The Court rejected that argument.  Relying on legislative text and history, the Court reasoned that Congress sought not only administrative convenience but also to honor the employee’s choice of beneficiary.  The Court held that FEGLIA preempted both sections of Virginia’s law as interfering with Congress’ legislative scheme, because Virginia law hinges on a finding that the proceeds actually ‘belong’ to someone other than the named beneficiary.  The Court acknowledged that “[o]ne can imagine plausible reasons to favor a different policy” as employees often forget to update beneficiaries following divorce.  However, the fact remains, FEGLIA does not provide an exception or divorce revocation and under the principles of preemption, it controls over Virginia’s state law in this area.

In Hillman, this meant that the insurance proceeds went to the decedent’s ex-wife, rather than to the woman that was his wife at the time of his death.

Though this decision is limited to life insurance policies tied to federal employment, it serves as a reminder to review and update your estate planning regularly, including your life insurance beneficiary designations.

To read the opinion in its entirety, go here.

 

Parental Rights for Same-Sex Couples

The Colorado Civil Union Act went into effect on May 1, 2013 (with the exception of certain provisions related to insurance).  Briefly addressed below are parental rights and options available to same-sex couples with relation to children, including children that have been in the family and children that are new to the family.

I.  STANDARD ADOPTION:

With the passage of the Civil Unions Act, same-sex couples can now jointly adopt children.  In order to do so, the couple must be parties to a civil union.  The process can be lengthy, and will include a home study and a parenting class.

Of note, one party to a Civil Union can not adopt a child on their own.  A party to a Civil Union is required to jointly adopt with the other party to the Civil Union, unless the parties are legally separated.

II. SECOND-PARENT ADOPTION:

This is a tool that was available to same-sex couples prior to the Civil Union Act, and continues to be available to same-sex couples where appropriate.

Second-parent adoptions encompass a variety of family circumstances in addition to same-sex couples.  For a second-parent adoption the sole legal parent must consent in writing to the adoption and must confirm that the child only has one legal parent.

The second-parent adoption process requires a home study and will also include a background check through three separate agencies.  Additionally, the adopting parent is now being required to also attend a parenting class.

III.  STEP-PARENT ADOPTION:

The step-parent adoption process has been available to opposite-sex couples for quite some time, but one requirement was that the parties be married.  The marriage requirement meant that this process was not available to same-sex couples.  However, with the passage of the Civil Union Act, this process became available to same-sex couples.  This process is generally less expensive and less invasive than the second-parent adoption process.

For a step-parent adoption, a legal parent (natural or adoptive) must be in a marriage or civil union with the potential adoptive parent, that same legal parent must consent to the adoption, and the child must be available for a step-parent adoption.

Available for adoption includes, but is not limited to:

  1. Other biological or adoptive parent is deceased;
  2. Other biological or adoptive parent’s parental rights have been relinquished or terminated;
  3. Other biological or adoptive parent consents to the termination of their rights and the adoption by the step-parent;
  4. Other biological or adoptive parent’s parental rights are being terminated as part of the adoption proceeding, but certain conditions must be met;
  5. The child was conceived and born out of wedlock (this includes when a child is conceived through assisted reproductive services).

Unlike the second-parent adoption process, a home study and parenting class are NOT generally required.  The process does require a background check through three agencies.

IV.  CHILDREN CONCEIVED BY ONE PARTNER:

If the child was conceived prior to the parties entering into a civil union, you will need to use the step-parent or second parent adoption process in order for both parties to have parental rights.

If the child was conceived after the parties entered into a civil union, then that child will be presumed to be the child of both parties to the civil union.  As such, no adoption is legally required in the State of Colorado.

In both situations, the parties are advised to consider obtaining a special Medical Power of Attorney in an effort to ensure the protection of the child and the non-birth parent in case the birth parent is unable or unavailable for medical decisions related to the birth parent or the child.

ADDITIONAL GENERAL ADOPTION INFORMATION

You will be required to file a specific Petition and other attendant legal documents for each adoption.  The Court will then schedule a hearing.  In step-parent adoptions, the hearing will be scheduled as soon as possible.  In other types of adoptions, the hearing will be scheduled for a date after the child has been in the adoptive home for at least 182 days.

Additionally, if the adoptive child is 12 years of age or older, their consent to the adoption will be required.

 

Disclaimer:   This post only offers general information and is not intended to provide legal advice regarding any person’s specific situation and does not create an attorney-client relationship of any kind.  The area of law discussed in this post is new to Colorado and is an area of the law that is constantly evolving on a state and national level, as such there is bound to be uncertainty regarding this area.   If you have specific questions, encounter difficulties with your own relationship, or need other legal advice, you are encouraged to contact an attorney that practices in this area. 

 

Dissolution of Same-Sex Marriages and Civil Unions From Other States – Can I? Why Should I?

legal gavel on top of divorce papersColorado’s new Civil Union law goes into effect in less than forty-eight hours and there is an almost palpable air of excitement.  Colorado’s LGBT community will finally have at least some legal recognition as well as legal rights, responsibilities and protections that have been denied them in the past, including a method for dissolution.  It isn’t marriage equality, but it is a strong step in the right direction.

One noteworthy aspect of the new Civil Unions law is the dissolution procedures. The new Colorado law provides that the divorce/dissolution procedures that apply to marriages will now equally apply to civil unions.  This is exceedingly relevant to many same-sex couples residing in Colorado who have previously entered into a marriage, civil union or similar legal relationship in other states or countries, such as New York, Massachusetts or Canada.  Just as with heterosexual couples, some of those relationships have not worked out.  However, unlike heterosexual couples, many have been unable to obtain a formal divorce or dissolution because Colorado has not recognized their legal relationship.

In many states and countries that offer same-sex marriage or civil unions, meeting residency requirements in order to obtain a marriage or civil union is easy, often 24 to 48 hours.  By contrast, in order to obtain a divorce or dissolution, at least one of the parties has to meet the more strenuous dissolution residency requirements, often six months to one year. Traditionally, this prevented spouses from forum-shopping for favorable divorce laws but it has created chaos for same-sex couples.  For example, in New York, at least one of the parties to a marriage obtained in New York must be a resident of the state for one year prior to the filing of a divorce action.  See N.Y. Dom. Rel. Law §§ 230, 231.  If both parties already live in a different state, obviously the idea of picking up one’s life, job, possibly children and moving to New York for a year is simply not realistic.  However, if neither party is residing in a state that recognizes their legal relationship, such as Colorado pre-May 1, 2013, then that state also will not generally grant them a divorce or dissolution.  There is no legal process available to them to end their relationship, and no set procedure for dividing their property and/or their debt, nor for deciding issues related to any children they have, including visitation schedules and/or child support. These couples are literally left in perpetual limbo, oftentimes facing complications and obstacles when they subsequently try to purchase a new home or start a new business or maybe even enter into a new relationship because in certain states, they are considered married to someone else even though they cannot obtain a divorce.

Colorado’s Civil Union law provides some relief to Colorado residents who have found themselves in this limbo.  The new law provides that any out-of-state marriage, civil union or substantially similar legal relationship is “deemed” a Colorado civil union.  Thus, same-sex couples who have already obtained a marriage or civil union in other jurisdictions will have the same state rights and responsibilities that married couples enjoy.  This is welcome news for many couples who already obtained legal status elsewhere and will not have to go through another legal procedure in their home state in order to enjoy legal recognition. However, it is also welcome news for those couples who are no longer together but have been unable, for the reasons discussed above, to obtain a formal dissolution.  They can now use Colorado’s dissolution procedures to formally and legally terminate their relationship.

Of course, this new legal recognition of existing legal relationships from other jurisdictions is a double-edged sword. Some couples who were previously married or otherwise legally joined elsewhere have since informally ended their relationship and managed to resolve or work out any financial issues, decisions pertaining to children, etc.  Thus, the fact that their previous marriage or civil union will now be deemed a civil union under Colorado law is not altogether happy news.  However, dissolving that relationship through the dissolution procedures is generally being viewed as a necessary step so that all parties can move forward free of any future liabilities or legal entanglements, and be able to enter into a civil union someday with a new partner.

Additionally, the Colorado legislature was likely aware of the nationwide problems arising for other same-sex couples seeking a dissolution or divorce that do not reside in the state in which they were joined.  The Civil Unions Act specifically includes a provision that allows Colorado courts to retain jurisdiction of proceedings related to a civil union entered into here, even if one or both parties cease to reside in this State.  Under the law, if parties to a civil union entered into in Colorado move to or reside in a state that does not recognize their relationship and/or will not grant a dissolution, they can file for dissolution in Colorado even though neither party resides here.  In 2012, California enacted similar legislation providing that if a couple got married in California during the window in 2008 when same-sex marriage was recognized but lives in a state that will not grant them a divorce, the California court will have jurisdiction to grant them a dissolution.  The divorce case will be filed in the county where the couple got married and the dissolution is supposed to be adjudicated “in accordance with California law.”

As of May 1, 2013, Colorado same-sex couples, and former couples, will have a mechanism to dissolve their legal relationship even if it was formed in another state.  This is a tool that will definitely be beneficial to some Colorado residents.

For more information and to see a map of same-sex dissolution laws by state take a look at this article.

For an in depth look at the same-sex couple divorce dilemma check out this great article in the New York Magazine.