Dissolution of Civil Union
At the time of this writing, eighteen states and the District of Columbia, allow same-sex marriages. These states are: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington. Colorado allows for civil unions and Nevada and Wisconsin have statutes providing for domestic partnerships. It is important for partners to a civil union, or potential partners to a civil union, to be aware that this is a rapidly changing area of the law and the contents of this article, while accurate as of the date of publication, may not reflect the current legal rights of same-sex couples in Colorado.
What is a civil union?
The Colorado Civil Union Act grants partners who enter into a civil union in Colorado every right, benefit, protection, duty, obligation and responsibility of a married person, under every Colorado statute, administrative rule, court rule, policy, common law, and every other source of law, except that civil union partners may not file joint Colorado state income tax returns. The rights, responsibilities and benefits related to same-sex marriage and civil union have been evolving on an almost daily basis and will continue to do so.
What rights and duties are conferred upon a couple when they enter into a civil union?
The rights and duties include, but are not limited to:
- Responsibility for the financial support of a partner and the right to be financially supported by a partner
- The right to adopt a partner’s child through stepparent adoption and to be considered a stepparent
- The right to jointly adopt a child with one’s partner
- If a child is conceived during a civil union by one of the partners, the non-biological partner will be presumed a parent under the Uniform Parentage Act and will acquire all the rights and responsibilities of parenthood
- Employment based medical insurance benefits
- Responsibility for decisions relating to the medical care and treatment of a partner
- Hospital visitation rights
- Eligibility for state family leave benefits
- The ability to automatically designate a partner as a beneficiary to a retirement plan
- The ability to inherit real or personal property from a partner without a written will
- The ability to exempt or protect family property from attachment during a financial crisis
- A partner to a civil union is included in any definition or use of the terms “dependent,” “family,” “heir,” “immediate family,” “next of kin,” “spouse,” and any other term that denotes the familial or spousal relationship as those terms are used in the Colorado Revised Statutes.
What if same-sex partners were legally married in another state?
Both Colorado statutory law and the Colorado constitution specify that a valid marriage is only between one man and one woman. Colorado’s same-sex marriage ban was recently deemed unconstitutional by the federal district court, although the State’s appeal of this decision has been stayed. Consequently, as of the date of this writing same-sex couples may not be issued a marriage in license in Colorado. Colorado statutory law further provides that a same-sex couple legally married in another state will be recognized by the State of Colorado as a couple in a civil union. Thus, a Colorado same-sex couple who goes to another state to legally marry will be deemed by the State of Colorado to be in a civil union upon their return. Likewise, a same-sex couple who resided in and legally married in a same sex marriage recognition state and subsequently moved to Colorado will be recognized by Colorado as partners to a civil union.
How do you dissolve a civil union?
When a couple enters into a civil union in Colorado they consent to the jurisdiction of the courts of Colorado to dissolve their union, irrespective of where the parties—or either one of the parties—might live at the time of the dissolution. This provision enables couples to dissolve their civil union even if one of them lives in a non-recognition state.
Do Colorado domestic relations laws apply to civil unions?
All of the Colorado domestic relations laws are applicable to couples who have entered into civil unions including, but not limited to, declaration of invalidity of the union, legal separation, dissolution, property division, maintenance and award of attorneys fees. Additionally, if there are children of the relationship the laws regarding allocation of parental responsibilities such as decision-making (what used to be known as legal custody), parenting time (what used to be known as visitation), and child support provisions apply to civil unions.
What about federal laws and benefits for couples who are in a civil union or dissolving a civil union?
Medicare and Social Security will give spousal benefits to couples who have the ability to inherit real or personal property from a partner without a written will under the laws of the state where they reside at the time that they file for benefits. Thus, partners to a Colorado civil union, who reside in Colorado, may file for and receive Medicare and Social Security spousal benefits.
For the purposes of other benefits, the federal government does not treat civil unions like marriages. This is of particular concern to couples who are parties to a dissolution of civil union matter because Internal Revenue Code (IRC) 1041 which allows for the tax free transfer of property between spouses incident to a dissolution of marriage (including legally married same sex couples) is not available to partners who are dissolving a civil union. Thus, a property transfer made pursuant to a valid court order in a dissolution of civil union action may be subject to transfer taxes depending on the value and nature of the property. Refer to Revenue Ruling 2013-17 for more information.
Additionally, maintenance ordered pursuant to a dissolution of civil union is not tax deductable and federal employee retirement benefits for ex-spouses, military benefits for ex-spouses, the Employee Retirement Income Security Act (ERISA), and the Consolidated Omnibus Budget Reconciliation Act (COBRA) are not available to parties who are dissolving a civil union.
What about couples who were legally married in a same-sex marriage recognition state but are now living in Colorado?
In general, the federal government will recognize the marriages of same-sex couples for federal benefits so long as they were married in a same-sex marriage recognition state regardless of whether same-sex marriage is recognized by the state in which they are currently living. For example, for purposes of federal taxes, immigration, military benefits, and federal employee benefits, the federal agency will recognize a couple as married if they married in a marriage recognition state even if they reside in a state which recognizes their marriage as a civil union or does not recognize it at all. Because of the potential federal benefits available to same-sex married couples that are not available to partners in a civil union, it is likely financially advantageous for a Colorado same-sex couple to marry in a marriage recognition state rather than enter into a civil union in Colorado or to marry in a marriage recognition state before filing for a dissolution of civil union.