Crossing the border

With New Hampshire joining the ranks of the civil union states this year, same-sex couples can now obtain all of the legal state benefits of marriage in four of the six New England states, either through civil unions in New Hampshire, Vermont and Connecticut or through marriage in Massachusetts. But what happens when you cross state lines? And do civil unions in New Hampshire work the same way as their counterparts in Vermont and Connecticut? Bay Windows spoke with Gay and Lesbian Advocates and Defenders (GLAD) attorney Michelle Granda to get the ins and outs of New Hampshire's civil union law and relationship recognition in New England more broadly.

Granda said New Hampshire's civil union law was drafted to function like civil unions in the other states where they have been passed.

"It's designed to be just like civil unions are in other states. ... It's designed to mimic what Vermont and Connecticut and New Jersey have done," said Granda.

To that end, couples that get civil unions in New Hampshire will enjoy all of the state benefits and obligations of marriage enjoyed by their heterosexual counterparts, but none of the federal benefits.

One area where New Hampshire differs from its New England neighbors is that its civil union law spells out what happens when people move from one state to another. Granda said the law includes a provision that says that when people with a civil union from another state cross over into New Hampshire, the state will recognize that civil union. Similarly, same-sex couples that were married in Massachusetts will be treated as if they have a civil union when they enter New Hampshire. As a result, couples that already have a lawful civil union or marriage from another jurisdiction do not need to get one if they move to New Hampshire.

That stands in stark contrast to Vermont, Connecticut and Massachusetts, states that do not have hard-and-fast rules for recognizing civil unions or same-sex marriages performed in other states. Granda said it is too soon to tell whether or not Vermont and Connecticut will recognize civil unions performed elsewhere. Both of those states define marriage as the union of one man and one woman, but Granda said it is unclear whether they would treat married same-sex couples from Massachusetts as if they had a civil union or decline to give any legal recognition to their relationship. It is also unclear whether Massachusetts would treat couples in a civil union as married couples when they cross the border.

"For the most part there haven't been enough experiences to make general statements about how these states will handle these kinds of questions going forward. So it's essentially an evolving process," said Granda.

With civil unions and marriage available in so many nearby states it seems unlikely that many New Englanders will be flocking from out of state to New Hampshire to get a civil union, but they are free to do so. Granda said that like Vermont and Connecticut, there is no residency requirement for getting a civil union. But there's a catch: As in Vermont and Connecticut, there is no residency requirement to get a civil union in New Hampshire, but there is one to dissolve a civil union. If a couple gets a civil union in New Hampshire and then moves out of state, in most cases one of the partners must move back to New Hampshire for a year before they can begin the dissolution proceedings. Couples can get around the one-year rule if one partner establishes residency in the state and then serves the other partner with dissolution papers while the other partner is in New Hampshire. There are similar one-year residency requirements for dissolution and divorce in Connecticut, Vermont and Massachusetts, but each state offers some limited flexibility on that rule.

Despite receiving no recognition at the federal level and limited recognition outside the state, Granda said New Hampshire's civil unions provide couples with important legal benefits. But with those benefits come obligations that couples should understand before taking the plunge.

"Civil union couples take the obligations that go along with marriage in New Hampshire, and that's something that civil union couples should consider. That includes a duty to support your spouse. That would extend to alimony and forced inheritance, assumption of debt," said Granda.

She said being recognized at the state level but not at the federal level can create unique problems for couples in a civil union that couples should investigate before heading to the town clerk's office.

"For instance, bi-national couples may jeopardize their immigration status by getting a civil union, and they can't sponsor each other for immigration purposes," said Granda.

Couples planning on starting a family could inadvertently kill their prospects for adopting internationally.

"I'm not aware of any country in the world that lets same-sex couples adopt jointly, and once you have a civil union you will have a joint relation that will be disclosed on your home study," said Granda.

While getting a civil union may close the door for a couple adopting internationally, it provides some of the strongest protections to date in New Hampshire for parents. New Hampshire only allows married couples and single people to adopt, meaning that prior to civil unions the partners in a same-sex couple could not both become the legal parents of their children. Entering a civil union will allow the second parent to formally adopt his or her children, and any children born to a civil union couple will be presumed to be the children of both parents. But Granda said even with that presumption of parentage, couples should go through formal adoption procedures to make their standing as parents explicit.

"New Hampshire law should operate that way, so that a child born to a civil union couple should be deemed to be the child of both of the civil union partners. But civil union couples should still follow up that presumption of parenthood with an adoption to give them the greatest legal protections," said Granda. Second-parent adoption ensures that both parents are recognized as legal parents when they travel in states that do not recognize the couple's civil union. If the biological parent dies, the non-biological parent retains custody, and if the parents dissolve their civil union each has the right to seek custody. Second parent adoption also gives the child the right to Social Security benefits, health insurance and other benefits from both parents.

While civil unions may give couples in New Hampshire more protections than they have ever enjoyed, they, like their counterparts in Massachusetts, Vermont and Connecticut, still lack federal recognition, which confers some of the most important protections on a couple.

"Same-sex couples who are married in Massachusetts and civil union couples don't have access to the 1138 rights and protections that go along with heterosexual marriage. And those are pretty important bread-and-butter protections for families, like Social Security survivor benefits and the ability to support each other without onerous tax consequences, and the ability to sponsor each other for immigration purposes. ... [The civil union law is] an incredibly important safety net. But it certainly has some holes remaining in that safety net," said Granda.

Relationship recognition in New England