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With New Jersey’s Domestic Partnership Act set to take effect Saturday, lawyers are grappling with its loose ends, scouring its provisions for loopholes and flocking to seminars to figure out what it does and does not do. At first glance, the law — which makes New Jersey the fifth state to recognize some form of same-sex union — seems simple enough: Cohabiting same-sex couples over 18 who agree to support each other and meet other criteria can register as domestic partners by filing an affidavit with a local registrar and paying a $28 fee. Heterosexual couples aged 62 or older can do the same. Domestic partnership comes with tax and inheritance benefits, hospital visitation rights, the ability to make health-care decisions on a partner’s behalf, protection from discrimination based on their status and other indicia of marriage. Domestic partners of state employees will get health and pension benefits, and local governments can decide to provide the same. As of June, at least three towns — Maplewood, South Orange and Princeton Borough — had passed such measures. Private employers do not have to provide benefits but many do so and the act will not interfere with that practice. But while the law creates a status akin to marriage, the benefits provided fall short, and as lawyers field client inquiries, they find themselves unable to provide definitive answers. Thomas Prol of Franklin, N.J.’s Fitzgibbons-MacMullin & Prol describes the law as largely symbolic, full of gaps and ambiguities that render domestic partnerships a “minefield” to be navigated with “creative lawyering.” For example, there is no tenancy by the entirety and, when a domestic partner dies, no elective share for the survivor, he points out. Red Bank, N.J., solo Mary Scrupski adds that where there is no will, the survivor does not have a right to be appointed as administrator. As for the tax consequences, Lisa Padilla, of Gibbons Del Deo Dolan Griffinger & Vecchione’s New York office, says domestic partners are treated like spouses for purposes of the inheritance tax but, on the federal level, they will not get the $1.5 million marital deduction. Employees will have to pay federal and states taxes on benefits to their domestic partners, she adds. In addition, domestic partners can claim each other as deductions on state income tax returns but will not be able to file joint returns, says Stephen Hyland, a Pennington, N.J., lawyer. Domestic partners are not liable for each other’s debts under the law, even debts incurred during the partnership, though partners are responsible for each other’s basic needs. “What happens if you have a partner who … ends up with a lot of debt for medical treatment?” asks Debra Guston, of Glen Rock, N.J.’s Guston & Guston. She calls the issue “ripe for litigation.” And lawyers are worried that people don’t realize it is harder to get out of a partnership than to enter one. “[T]hey can’t simply unregister” to end a partnership but must go to court, says Felice Londa, of Elizabeth, N.J.’s Londa & Londa. TERMINATION YIELDS NO SUPPORT Domestic partnership terminations can be granted on the same grounds as divorce, such as adultery, desertion, separation and extreme cruelty. Termination differs widely from divorce, however, when it comes to property distribution and support. “There is no ongoing support obligation,” says Madeline Marzano-Lesnevich, who chairs the Family Law Section of the New Jersey State Bar Association. On termination, domestic partners “shall incur none of the obligations to each other as domestic partners that are created by this or any other act,” provides the law. Despite that language, and the fact that children of one domestic partner do not automatically become the legal offspring of the other, Hyland thinks a good argument can be made for payment of child support by a domestic partner who has filled the role of parent for years. The lack of spousal support is particularly glaring when one partner has played the role of stay-at-home parent, where alimony would likely be awarded in the divorce context, says Marzano-Lesnevich, of River Edge, N.J.’s Lesnevich & Marzano-Lesnevich. Another open question is equitable distribution. Section 10(a)(3) says courts “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.” Since the law does not prohibit equitable distribution, many lawyers hope that judges will be inclined to do it for domestic partners even if they do not have to. Family Part is a court of equity and its judges have broad discretion, reminds Marzano-Lesnevich. “I hope they will read that clause as allowing them to make a fair adjudication of property even if it is held in only one partner’s name,” she says. “This is what they know how to do,” says Hyland. Judges can look to palimony cases for guidance, he says. Still, he foresees “huge fights” for couples who have acquired significant property over the years, predating the domestic partnership. He urges couples to spell out their wishes in a written prenuptial or living-together agreement before they register. The law expressly provides that “[d]omestic partners may modify the rights and obligations to each other that are granted by this act in any valid contract between themselves.” Hyland recommends a domestic partnership package, including a prenuptial agreement, powers of attorney, estate planning, joint property agreements and guardianship documents. Terminating partners must file in Superior Court, though the law does not specify which division or part. Some lawyers query whether that leaves open the possibility of venue in the Law Division or the General Equity Part of the Chancery Division if terminations are handled as contract matters. Tamara Kendig, a spokeswoman for the Administrative Office of the Courts, says Family Part judges received training on the law during a two-day retreat in May. Some judges also attended four seminars on the statute given by the New Jersey Institute for Continuing Legal Education that drew hundreds of lawyers. The law gives explicit recognition to domestic partnerships, civil unions and reciprocal beneficiary relationships from other states. That raises questions about what happens with a same-sex couple who enter a union in a jurisdiction that gives broader rights than New Jersey, including Massachusetts, which recognizes gay marriage. It is also unclear what, if anything, New Jersey domestic partners will have to do when they move to a state that does not recognize domestic partnerships — such as Vermont, despite its civil unions. In addition, Vermont has no residency requirement for entering into civil unions but does have one for ending them, says Hyland. If a couple from New York who entered into a Vermont civil union now want to end it, will they cross the river to New Jersey to avoid the Vermont residency rule? queries Hyland. Another anomaly is that although domestic partners can enter into only one partnership at a time, no law prevents a person in a domestic partnership from marrying a member of the opposite sex, notes Hyland. Diana Sclar, a professor at Rutgers Law School-Newark, identifies other issues, such as what happens if one domestic partner moves out of New Jersey. Opinion is split on whether the remaining partner would be able to obtain property division and predissolution support from a New Jersey court, says Sclar. If both domestic partners switch states, they might have to return here to terminate the partnership because courts in other states might not allow jurisdiction. As lawyers begin to grapple with these and other questions, litigation that could moot many of these issues is working its way through the courts. Last November, Mercer County Assignment Judge Linda Feinberg dismissed a case seeking to establish a right to full-fledged, same-sex marriage and an appeal is pending, Lewis v. Harris, A-2244-03. Plaintiffs filed briefs in May. Once the state files its briefs, the plaintiffs intend to ask the Supreme Court to consider the case directly. If the plaintiffs prevail, it is not clear what would happen to what might, by that point, be hundreds of domestic partnerships. “I would be drafting any documents with an eye toward marriage,” says Hyland. “A lot of us are viewing this as an interim status.”

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