NJ Family Law - Gay &
Lesbian Family Law
Homosexuality v. Family Law:
Form v. Substance
*Richard S. Diamond, Esq.
Society is changing.
Traditional constructs of the American "family" have become
outdated. Today, there is no concrete definition of a "family."
The court in Dey v. Varone (333 N.J. Super . 616
(2000)), suggests that there has never been a clear definition
as to what constitutes a "family" or "family-type" relationship.
Certainly, the "Leave It to Beaver" family still exists but is
no longer the sole construct of the functional family. Arguably,
a teen mother and her baby are a family in our society today. So
is a couple cohabitating out-of-wedlock. Today, there are more
stepparents, stepchildren, half-siblings, foster families, unwed
parents, teen mothers, childless parents, parentless children,
and homosexual domestic partners than ever before.
The traditional construct of
the American family changed 23 years ago in New Jersey when our
Supreme Court addressed whether it should afford legal rights to
unmarried heterosexual cohabitants when their relationship ended
- a concept that was unheard of in New Jersey prior thereto.
According to our Supreme Court, society's mores were found to
have changed and agreements between adult heterosexual parties
living together were enforceable. Our Court concluded that
previous judicial barriers that stood in the way should be
removed (Kozlowski v. Kozlowski, 80 N.J. 378
(1979)). Clearly, society's mores continue to change.
As the variety of human
relationships within the concept of a family grows, so too will
the scope of family law. In the not too distant future, Courts
will be charged with the responsibility of deciding many novel
issues that arise as a result of individuals in these
relationships in effort to preserve their rights. Certainly, the
issue of homosexual cohabitation will be no exception. During
the course of homosexual relationships, several issues are sure
to arise. These include support obligations, adoption, child
parenting time, property distribution and domestic violence, all
of which in heterosexual relationships are considered actions to
be commenced in the Family Part.
Arguably a pivotal question
involving homosexual relationships will be the extent to
which the courts will become involved in deciding issues that
arise in a breakup, including support and property distribution.
The issue of support is particularly fascinating when considered
in light of the New Jersey cases that have upheld the concept of
palimony. One such case, Kozlowski v. Kozlowski (80
N.J. 378 (1979)) involved a woman's action against a man
with whom she had lived for fifteen years seeking to recover a
share of the assets he had accumulated during those years, the
reasonable value of services rendered for his benefits, and
future support based on promises made to her during the course
of their relationship in which she alleged to her detriment.
(Id.) As the court noted, "[t]he primary issue. . . is whether a
man and a woman who are not married to each other, and who live
together without a promise of marriage, may enter into a
contract which, if otherwise valid, is enforceable by our
courts." (Id. at 380). The court held that "an agreement between
adult parties living together is enforceable to the extent it is
not based on a relationship proscribed by law, or on a promise
to marry." (Id. at 387).
When an intimate relationship
evolves and a couple begins to cohabitate, the same
characteristics attach in a homosexual cohabitation relationship as in
a heterosexual cohabitation relationship. The homosexual
cohabitating couple typically intertwine their lives in the same
way with the same dangers when the relationship ends as with a
heterosexual cohabitating couple.
the concept of palimony as the unmarried cohabitants' answer to
alimony, based on the principles of contract. In the stereotypical palimony setting, usually a man will promise to provide
for a woman if she agrees to cohabitate with him and take care
of him, and she alters her financial position (to her detriment)
in reliance on those promises. Based on that "detrimental
reliance", our Courts have found the foundation to impose
financial obligations upon that man, (based on a variety of
equitable remedies). The same situation can and will happen in
same sex relationships when one party relies to his or her
detriment on the other party's promise and the relationship
comes to an end.
Although our palimony cases
were decided in contemplation of heterosexual cohabitation,
there is no logical reason why their holdings should not extend
to homosexual cohabitation as well. Homosexual partners could
just as easily find themselves in a similar predicament, where
one partner performs certain functions and changes his/her
position in reliance on the other's promise of support and
sharing of assets. Detrimental reliance is a time-honored theory
of contractual obligation that should make no distinction on the
basis of sexual orientation. This extension of the palimony
concept would be the most logical cognizable basis for finding a
support obligation between homosexual cohabitants at the
termination of the relationship and addressing the division of
assets acquired during the course of that relationship.
Once it has been determined
that an action between two former homosexual cohabitating adults
in a palimony style action can be had, then it must be
determined in what forum the case should be heard. Family style
actions between heterosexual couples are heard in the Family
Part court and the same should hold true with homosexual couples
under a "family type" heading.
The key terms in the Family
Part, Court Rule 4:3-1(a)(3) "family" or "family-type" encompass
much more than the traditional heterosexual family structure.
Justice Long in V.C. v. M.J.B., 163 N.J. 200
(2000), made it clear:
We should not
be misled into thinking that any particular model of family life
is the only one that embodies "family values." Those qualities
of family life on which society places a premium -- its
stability, the love and affection shared by its members, their
focus on each other, the emotional and physical care and
nurturance that parents provide their offspring, the creation of
a safe harbor for all involved, the wellspring of support family
life provides its members, the ideal of absolute fealty in good
and bad times that infuses the familial relationship (all of
which justify isolation from outside intrusion) -- are merely
characteristics of family life that, except for its communal
aspect, are unrelated to the particular form a family takes.
Those attributes may be found in biological families,
step-families, blended families, single parent families, foster
families, families created by modern reproductive technology,
and in families made up of unmarried persons.
What is required is the creation of "an intimate
familial relationship that is stable, enduring, substantial and
mutually supportive, . . . one that is cemented by strong
emotional bonds and provides deep and pervasive emotional
security." (Emphasis added) Id. at 232, quoting Dunphy
v. Gregor, 136 N.J. 99, 115 (1994); see also, Watkins v.
Nelson, 163 N.J. 235 (2000); Brennan v. Orban,
145 N.J. 282, 301 (1996); Crowe v. De Gioia, 102
N.J. 50, 56 (1986).
Our Appellate Court also
recently addressed this area and suggested that actions for
partition of real estate owned jointly by unmarried
cohabitants belong in the Family Part and not the
General Equity Part. (Dey v. Varone, 333 N.J. Super.
616, 619 (2000)). The court in Dey v. Varone, Id.,
cited Olsen v. Stevens where the court determined a
General Equity partition action should have been transferred and
consolidated with a Family Part action which involved palimony,
child support and the division of other assets in an unmarried
"Although the Appellate
Division does not elaborate, the obvious benefit is to have all
issues as to all parties resolved in a single forum, the vision
that property disputes between unmarried cohabitants
should be resolved by the same courts that resolve disputes
between married cohabitants." Id. at 619; see also,
In re Estate of Roccamonte, 324 N.J. Super. 357, 366
The language utilized by our
courts makes clear that "disputes between unmarried cohabitants
should be resolved by the same courts that resolve disputes
between married cohabitants." With this body of law behind us,
how can our Courts distinguish between a heterosexual and
homosexual cohabitation relationship? The heterosexual
relationship is not unique in respect to the issues to be
resolved. In both types of relationships, the division of assets
and other equitable relief issues need to be addressed. So
why, would actions involving heterosexual cohabitants be held
different from actions involving homosexual cohabitants when the
relationship's qualities and have to be resolved are identical
The New Jersey Supreme Court
has repeatedly acknowledged the need to defer to Family Part
judges in matters dealing with families or "family-type"
situations. In Brennan v. Orban, 145 N.J. 282
(1996), the court emphasized that the "constitutional amendment
creating the Family Part arose from the idea that this court
would specialize in and uniquely understand the problems of
families and all matters related thereto. The goal was to
achieve a sounder and better form of justice." (Id. at
619.) This unique knowledge of the Family Part judges would
greatly benefit any cohabitating couple, whether heterosexual or
homosexual in nature.
Family Part judges commonly
deal with the division of property between persons in a family
or family-type setting. They have at their disposal various
forms of mediation and alternative dispute resolution
devices that do not exist to the same degree in the General
Equity Part. With the goal of the ever changing family structure
in mind, it would follow that any issue resulting from a
cohabitation relationship, whether heterosexual or homosexual,
should be heard in the Family Part of the Court System as a
"family-type" setting and viewed identical in nature in terms of
the type of relief available.
The Court in 1979, saw that the
mores of society had changed so radically in regard to
cohabitation that it could no longer impose a standard based on
moral considerations that had been abandoned by so many. It
seems that the mores of society have changed once again in
regard to cohabitation of homosexual couples. It is time the
Court remove the judicial barriers that stand in the way of
fulfilling the reasonable expectation of the parties involved,
including the imposition of obligations against one or both
parties flowing from the termination of that relationship.
This is only one example of a
legal question which is posed by homosexual relationships. The
nontraditional family is a growing reality. Courts will
increasingly play an important role in deciding these family
style issues in homosexual cohabitation relationships. The only
question is in what court and under what theory will these
issues be resolved. Regardless of people's attitudes toward the
lifestyle choices of others, the law must adapt to a changing
society in which new forms of family relationships will subject
the rights and obligations of individuals to legal scrutiny. The
courts should be careful not to apply different standards to
circumstances that are substantivally the same. If you take out
the pronouns representing the sex of the parties, the
underlying, substantive circumstances are identical and should
be treated as such by the law.
With more than half a
century's experience, it's easy to see that Diamond & Diamond
is the smart choice when you find yourself in need of NJ legal
representation in gay & lesbian domestic
disputes, family law, divorce, domestic violence or child custody matters
in New Jersey.
Email or call us now at
Diamond & Diamond
Family Law & Divorce
Avenue, Suite 208
Millburn, New Jersey 07041