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New Jersey is poised to become the second state to recognize homosexual couples as legal entities, as a measure supported by the governor nears passage in the Legislature. The Domestic Partnership Act, A-3743, passed the Assembly Dec. 15 and now heads for the Senate, which must act before the Jan. 13 close of the legislative session. The Senate Judiciary Committee last week recommended passage of an identical bill. Because of its fiscal impact, the bill must be considered by the Senate Budget and Appropriations Committee. Gov. James McGreevey has said he would sign it. Though it specifically does not confer the status of marriage, the act makes clear that its intent is to afford same-sex partners protections and benefits comparable to those enjoyed by married couples. “Currently, a significant number of New Jersey residents live in families in which the heads of households are unmarried,” the bill’s statement reads. “Despite their interdependence and mutual commitment, these families do not have access to the protections and benefits offered by the law to married couples; nor do they bear legal obligations to each other, no matter how interdependent their relationship. This bill seeks to redress this oversight and provide certain benefits to, and enforce certain obligations within, these families.” The act provides that two people of the same sex who are 18 years of age or older may jointly execute and file an Affidavit of Domestic Partnership with their local registrar, along with a fee to be set later, if: � Both share a common residence in this state, or share the same place to live in another jurisdiction when at least one of them is a member of a state-administered retirement system; � Both are otherwise jointly responsible for each other’s common welfare, as demonstrated by joint financial arrangements or joint ownership of real or personal property, to 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 a primary beneficiary in the other person’s will; designation of one of the persons as a primary beneficiary in the other person’s life insurance policy or retirement plan; or joint ownership of a motor vehicle; � Both agree to be jointly responsible for each other’s basic living expenses during the domestic partnership; � Neither is in a marriage recognized by New Jersey law or a member of another domestic partnership; � Neither is related to the other by blood or affinity up to and including the fourth degree of consanguinity; � Both are of the same sex and therefore unable to enter into a marriage with each other that is recognized by New Jersey law; � Both have chosen to share each other’s lives in a committed relationship of mutual caring; and � Neither person has been a partner in a domestic partnership that was terminated less than 180 days before the filing (unless the earlier partner is dead). Dissolution of a domestic partnership would be much the same as a divorce. For an uncontested dissolution, a couple would have to be separated for at least 18 months. A heterosexual couple over the age of 62 could also file an Affidavit of Domestic Partnership and be given the same rights. This allows elderly people to live together unmarried for the purpose of avoiding the marriage tax penalty and other financial implications. Critics warn that this provision could lead to legal challenges, since no similar provision is made for heterosexual couples under age 62. MORAL AND FISCAL CONCERNS The bill was approved by the Assembly in a party line vote, 41-28, the minimum needed for passage. There were nine abstentions. Republican opponents objected largely on two grounds, some claiming the bill comes too close to recognizing same-sex marriage and others saying governments and businesses could be hurt because of potential increases in pension and health benefit costs. Supporters of gay marriage, on the other hand, say the law does not go far enough. “In our view, any legislation that does not recognize [same-sex] marriage creates two classes of people. That carries a message of unworthiness that can be used to justify discrimination,” says David Buckel, a senior counsel at the Lambda Legal Foundation in New York, who is the lead attorney for seven same-sex couples suing the state over denial of marriage licenses. While Lambda supports the bill, Buckel says that there is still an implicit denial of constitutional equal protection guarantees. “It does not provide the same orderly structure” as marriage, he says, adding that he will appeal last month’s dismissal of the suit by Mercer County Superior Court Judge Linda Feinberg. John DeBartolo, the chairman of the New Jersey State Bar Association’s Family Law Section, warns that the legislation also contains other potential pitfalls, particularly in a situation in which a same-sex couple decides to break up. While the same evidentiary procedures would apply, language in the bill was changed that could result in one party being harmed, he says. As originally written, the bill stated: “The termination shall follow the same procedures, and the parties shall be subject to the same substantive rights and obligations, as are involved in an action for divorce pursuant to N.J.S.A. 2A:34-1 et seq.” But in the version passed Dec. 15 by the Assembly, that sentence was eliminated and the following paragraph added: “In all such proceedings, the court shall in no event be required to effect an equitable distribution of property, either real or personal, which was legally and beneficially acquired by both domestic partners or either domestic partner during the domestic partnership.” “My concern is that you will have same-sex couples who have the same problems as married people but that one party is going to be left in an inequitable situation,” says DeBartolo, a partner at Red Bank, N.J.’s Atkinson & DeBartolo. For example, he says, the bill does not offer protection to a partner in a same-sex partnership who, for any of a number of reasons, chooses to become a stay-at-home partner. If the couple breaks up, the legislation offers no provisions for alimony or support. The issue of child custody and support may also arise in the situation of the breakup of a same-sex couple, he says, but notes that New Jersey courts now generally apply the standard of what is in the best interests of the child. “This takes a totally different approach than the [Vermont] civil union bill,” DeBartolo says. Buckel, too, says that language is worrisome. “Same-sex relationships are not immune to the problems of heterosexual households,” he says. “That is one of the hundreds of inequities that are not being addressed.” During last week’s Senate Judiciary Committee hearing, Sen. Robert Martin, R-Morris, voiced similar concerns. “We could have gone further,” he said before voting to recommend passage. The bill, he complained, did not properly address property rights or child custody and support issues. “I question the manageability of [breakups] by the Family Part,” Martin said. “That being said, it’s time to move this along.” The chief sponsor of the legislation, Assemblywoman Loretta Weinberg, D-Bergen, agreed that the bill could have done more but defended it nevertheless. “Yes, a lot of things are not addressed that I would like to have seen addressed,” says Weinberg. “I probably would have preferred that the bill address some of the inequities that have been brought up.” But there are, she says, political realities that have to be recognized. The bill that passed the Assembly on Dec. 15, Weinberg says, is the product of intense negotiations. Ultimately, she says, the end product is a compromise bill that gained enough votes for passage. “Our ultimate goal was to recognize that these relationships exist and should be legally recognized,” says Weinberg.

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