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Matrimonial Matters: Foreshadowing from Mass. Supreme Court

Sara Stout Ashcraft

A recent decision handed down by the Massachusetts Supreme Court should be on the radar of New York matrimonial attorneys. In Elia-Warnken v. Elia (SJC-11023), the top court of Massachusetts transferred the case from the Appeals Court to consider a question of law: “Whether or not a Vermont civil union must be dissolved before either party to that civil union can enter into a valid marriage in Massachusetts to a third party.” The ruling in this case by New York’s neighbor bears our consideration.

Even before New York passed a same-sex marriage law, New York courts had held that under comity New York was bound to recognize same-sex marriages performed in a state permitting such unions. New York courts have granted divorces for same-sex couples married in another state. Further, New York has permitted same-sex marriages for almost a year, and divorces from a few of those marriages are beginning to trickle into the courts.

Since several states provide the civil union option rather than same-sex marriage, it is inevitable that the question before the Massachusetts Supreme Court in Elia-Warnken will be raised here in New York. 

The issue in the Massachusetts case arose when a same-sex couple married in that state filed for divorce. Prior to his marriage to the defendant in Massachusetts, the plaintiff had entered into a civil union in Vermont with another man. After the divorce action was commenced, the defendant apparently learned of the plaintiff’s Vermont civil union. The defendant then moved for a dismissal of the complaint and his counterclaim for divorce, based on the ground that the Massachusetts marriage was void.

The plaintiff countered that in 2009 when Vermont repealed part of its civil union laws and modified the marriage laws to permit same-sex marriages, civil unions were not automatically converted to marriages. This, according to the plaintiff, demonstrated “that civil unions are not marriages, are different from marriages and are not equal to marriages even in Vermont.”

The Massachusetts court stated that “… we are not persuaded that these facts are determinative whether we recognize civil unions as the equivalent of marriage here, where the rights and obligations procured by those entering in a civil union were functionally identical to those of marriage.”

The court continued, “Refusing to recognize a legal spousal relationship that granted rights equal to those acquired through marriage, in a state that did not allow same-sex couples to marry at the time, would only perpetuate the discrimination against same sex couples. …” Further, “Here, if we do not recognize the plaintiff’s civil union, he would have two legal spouses, each of whom could expect virtually the same obligations from him, such as spousal or child support, inheritance, and healthcare coverage. Likewise, the plaintiff could demand the same obligations from each of the spouses.”

Pointing out that Massachusetts statutorily barred polygamy to prevent these types of “complications,” the court held that, “We shall recognize a Vermont civil union as the equivalent of marriage in the commonwealth [of Massachusetts] under principles of comity,” and, “a Vermont civil union must be dissolved prior to either party entering into marriage with a third person in the commonwealth.”

The court also stated that, “Although we decide this case under Massachusetts law, we note that the result would be the same under Vermont law, which prohibits marriage to a third party while one party is still a party in a civil union.”

The moral of this story is that New York matrimonial lawyers should inquire not only about a prospective client’s marriage history, but about any civil union history — and just to be safe, ask about domestic partnerships.

Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.

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