I have previously written regarding the problem posed by out-of-state civil unions. Under New York law, while such unions are recognized through the principles of comity, New York does not have any legislation that addresses how these unions may be dissolved once one or both of the parties reside in New York.
The prior decision, made by the trial court, stated that the court would have jurisdiction to address dissolution of the civil union. However, the court was searching for the way to accomplish this and suggested that the complaint be pled to seek dissolution of a civil union, as opposed to a divorce, as a complaint was plead initially. As a trial court decision, B.S. v. F.B., did not carry a significant weight of authority and would not be binding on other trial courts.
Now we have the first appellate level decision to address this issue. In Dickerson v. Thompson, 2010 N.Y. Slip. Op. 02052 (3rd Dept. 2010), the Appellate Division, Third Department, held that New York court have subject matter jurisdiction “to entertain an action for equitable and declaratory relief seeking dissolution of a civil union validly entered into outside of this state.” The court did not determine the scope of the relief that may be available in such action.
What is obvious from the decision is that the Appellate Division believed that the courts had authority to handle such cases, but was struggling come up with the way to accomplish the dissolution. What makes it difficult, is the fact that when a divorce takes place, the court will address such issues as custody, child support, spousal maintenance, and equitable distribution. All of the above issues are resolved in accordance with the provisions of the Domestic Relations Law. What is unknown is how the courts will handle custody, child support, spousal maintenance and equitable distribution in dissolution of a civil union, something that apparently carries less weight in New York courts than a traditional marriage. Does entering into a civil union create a potential entitlement to a spousal maintenance? I don’t know the answer to that question, I suspect that the courts do not know the answer to it either. It is quite likely that New York legislature will have to address these issues and, until then, the courts will try to come up with some ways of addressing these issues.
For a divorce lawyer, the above represents an excellent example of uncertainty created by the lack of uniformity in the states’ treatment of same-sex relationships. It also brings up a host of interesting legal issues that attorneys must recognize in handling similar situations.