TN 24 (05-14)

A. PR 14-081 Name Change Arising from a Same-Sex Marriage in New Jersey

DATE: April 23, 2014

1. SYLLABUS

Accept marriage documents issued to same-sex couples for marriages that took place on 10/21/2013 or later by jurisdictions (town, county or State) in New Jersey as evidence of a name change.

2. OPINION

Question Presented

You have requested an opinion regarding the following:

• whether New Jersey permits parties to a same-sex marriage to change their names based on the marriage;

• the date New Jersey began issuing marriage licenses and certificates to same-sex couples;

• whether there was any change to the status of prior or new civil unions or domestic partnerships entered into in the same State; and

• whether a prior entered civil union and domestic partnership must be dissolved before entering a same-sex marriage.

Opinion

We conclude as follows:

• New Jersey permits parties to a same-sex marriage to change their names based on the marriage.

• New Jersey began issuing marriage licenses and certificates to same-sex couples on October 21, 2013.

• There was no change to the status of prior or new civil unions or domestic partnerships entered into in New Jersey.

· Prior entered civil unions and domestic partnerships do not need to be dissolved before entering a same-sex relationship, as long as the same parties enter into the same-sex marriage as entered into the civil union or domestic partnership.

Background

In examining the ways in which New Jersey’s laws continued to restrict same-sex couples from enjoying the full benefits and privileges of marriage, the New Jersey Supreme Court observed that “without the benefits of marriage, some plaintiffs have had to endure the expensive and time-consuming process of . . .legal surname changes.” Lewis v. Harris 908 A.2d 196, 202 (2006). The Court in L~ concluded that under the equal protection guarantee of the New Jersey Constitution, committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by married opposite-sex couples. L~, 908 A.2d at 220-21. The Court mandated that the New Jersey legislature either amend the marriage statute to include same-sex couples, or create a separate statutory structure, such as a civil union. L~, 908 A.2d at 221. In response, the New Jersey legislature passed the Civil Union Act and established civil unions beginning February 19, 2007. N.J. Stat. Ann. § 37:1-32 (West, Westlaw through 2013). In so doing, the legislature added a list of legal benefits, protections and responsibilities of spouses that shall apply in like manner to the parties to a civil union, including the “right of a spouse to a surname change without petitioning the court.” N.J. Stat. Ann. § 37:1-32(q).

Six same-sex couples and an advocacy group brought suit in New Jersey, arguing that the rights and benefits of civil unions were not equal to those of marriage. Garden State Equality v. Dow, 82 A.3d 336 (N.J. Super. Ct. Law Div. 2013). In June 2013, as this suit was pending, the U. S. Supreme Court struck down section 3 of the federal Defense of Marriage Act as unconstitutional and held that the federal government was required to provide the same rights and responsibilities to same-sex couples who were married under state law as to married couples of the opposite sex. United States v. Windsor, 570 U.S. --, 133 S.Ct. 2675 (2013). As a result of the decision in W~, the Garden State court issued a decision and ordered that same-sex couples must be allowed to marry in New Jersey beginning October 21, 2013. In its decision, the court noted that a number of federal agencies had acted to extend marital benefits to same-sex married couples but not to civil union couples. The court found that New Jersey same-sex civil union couples were no longer entitled to all of the same rights and benefits as opposite–sex married couples. The court also declined to rule on the constitutionality of New Jersey’s Civil Union Act. Garden State Equality, 82 A.3d at 368-69.

In denying the state’s request for a stay of the court’s order pending appeal of the ruling, the New Jersey Supreme Court concluded that the trial court’s order remained in effect and that state officials were required to permit same-sex couples to marry beginning on October 21, 2013. In its decision, the Court also noted that the lower court did not strike down the Civil Union Act and that it remained available for couples who chose to use it. Garden State Equality v. Dow, 79 A.3d 1036, 1041-42 (N.J. 2013).

A Memorandum from the New Jersey State Registrar to Local Registrars (Memorandum from State Registrar), dated October 18, 2013, referred to the Garden State decision and stated:

Pursuant to a recent court decision, same-sex couples must be afforded the opportunity to enter into marriage in this State. In order to comply with the court ruling, local registrars should begin accepting marriage license applications from same-sex couples immediately. When processing marriage applications, local registrars must ensure that same-sex couples and opposite-sex couples are treated equally. As such, same-sex couples must follow the same procedures and satisfy the same requirements that are imposed upon opposite-sex couples seeking to enter into civil marriage, including the 72-hour statutory waiting period for the issuance of a marriage license.

http://www.state.nj.us/health/vital/documents/memo_to_local_reg.pdf

On October 21, 2013, New Jersey began issuing marriage certificates to same-sex couples.

Analysis

When a State legalizes same-sex marriages, the Regional Office should obtain a Regional Chief Counsel precedent opinion requesting the following information:

· whether the State permits parties to the same-sex marriage to change their names based on the marriage;

· the date the State will begin issuing marriage licenses and certificates to same-sex couples;

· any change to the status of prior or new civil union or domestic partnership entered into in the same State; and

· whether a prior entered civil union and domestic partnership must be dissolved before entering a same-sex marriage.

Program Operations Manual System (POMS) RM 10212.035.D (Evidence of Name Change based on a U.S. Same-Sex Marriage).

1. Whether New Jersey permits parties to the same-sex marriage to change their names based on the marriage.

The applicable New Jersey statute (Marriage Licenses and Certificates of Marriage) is silent as to whether the parties to a same-sex or opposite-sex marriage may change their name based on the marriage. See N.J. Stat. Ann., Title 26, Chapter 8, Article 5. However, based on common law and the language in L~ and the Civil Union Act, we believe that New Jersey permits parties to both opposite-sex and same-sex marriages to change their names based on the marriage.

At common law, a person could change his or her name without a court order so long as it was not done for fraudulent, criminal or other illegitimate purposes. See tate v. Librizzi , 188 A. 511 (N.J. 1936); Matter of E~, 584 A.2d 859 (N.J. Super. Ct. App.Div.1991) ¹ Further, as the New Jersey Supreme Court made clear, opposite-sex couples enjoy the right to a surname change without petitioning the court. L, 908 A.2d at 215. L~ required that committed same-sex couples must be afforded the same rights and benefits enjoyed by married opposite-sex couples. L~, 908 A.2d at 220-21. In response, in passing the Civil Union Act, the New Jersey legislature added a list of legal benefits, protections and responsibilities of spouses that applied in like manner to the parties to a civil union, including the “right of a spouse to a surname change without petitioning the court.” N.J. Stat. Ann. § 37:1-32(q). Accordingly, although not explicitly set out either by statute, based on both L~ and the Civil Union Act, it is clear that the benefits and protections afforded to opposite-sex married couples, including changing one’s name without a court proceeding, are afforded to same-sex married couples.

2. The date the State will begin issuing marriage licenses and certificates to same-sex couples.

As noted, New Jersey began issuing marriage licenses and certificates to same-sex couples beginning October 21, 2013.

3. Whether there is any change to the status of prior or new civil union or domestic partnership entered into in the same State.

Following the superior court’s ruling in Garden State Equality, New Jersey has not yet codified the status of prior or new civil unions or domestic partnerships entered into in New Jersey. However, according both the New Jersey Supreme Court and the New Jersey Department of Health (DOH),Vital Statistics and Registry, frequently asked questions, civil unions remain valid and couples may continue to apply for and enter into civil unions if they so choose. Garden State Equality, 79 A.3d at 1042; DOH, http://www.state.nj.us/health/vital/faq.shtml#ssm (last visited March 31, 2014). Further, same-sex and opposite-sex couples can continue to register domestic partnerships, but only if they are 62 years old or older. DOHhttp://www.state.nj.us/health/vital/faq.shtml#DOM, (last visited March 31, 2014).

Civil unions will not automatically convert to marriages. A civil union couple will have to apply for and receive a marriage license and thereafter engage in a marriage ceremony in order to receive a marriage certificate. DOH, http://www.state.nj.us/health/vital/faq.shtml#ssm. Although not specifically detailed by the DOH, it appears that domestic partnerships will also not automatically convert to marriages and that a domestic partnership couple will also have to follow the same procedure as a civil union couple in order to receive a marriage certificate. http://www.state.nj.us/health/vital/faq.shtml#ssm.

After an individual subsequently marries his or her current civil union or domestic partner, the civil union or domestic partnership will remain intact and will still be on file with the Office of Vital Statistics and Registry. DOH, http://www.state.nj.us/health/vital/faq.shtml#ssm.

4. Whether a prior entered civil union and domestic partnership must be dissolved before entering a same-sex marriage.

An individual will not have to dissolve his/her civil union in order to enter into marriage so long as she or he is marrying his/her current civil union partner. DOH, http://www.state.nj.us/health/vital/faq.shtml#ssm. However, if an individual wishes to marry someone other than his or her civil union partner, then the individual must dissolve the civil union before marrying someone else. DOH, http://www.state.nj.us/health/vital/faq.shtml#ssm. Although not specifically spelled out by DOH, the same requirement to dissolve the domestic partnership seems to be applicable before an individual can marry someone else.

Conclusion

We conclude New Jersey permits legal name changes on the basis of same-sex marriages.

Footnotes:

[1]

^. New Jersey also has a mechanism permitting parties to petition the court for a formal name change. See N.J. Stat. Ann. 2A:52-1 et seq. This statute is construed consistent with and not in derogation of the common law. Matter of E~, 584 A.2d at 860.