Although gay marriage is not yet legal in New Jersey, a judge ruled last week that gay divorce is.
New Jersey Superior Court Judge Mary C. Jacobson ruled Feb. 6 that a lesbian couple who obtained a marriage license in Canada could receive a legal divorce in New Jersey.
La Kia Hammond and her former partner Kinyati were married in Canada in 2004 and settled in North East, Md. The following year, Hammond discovered that she had a terminal form of muscular dystrophy and was told that she only had two years to live.
In 2006, Hammond left Kinyati and moved to New Jersey with her 14-year-old daughter from a previous relationship.
Hammond, 33, has since started a relationship with another woman and wants to travel to Canada to marry her.
New Jersey attorneys Lawrence Lustberg and Avidan Cover of Gibbons, P.C., and solo practitioner Stephen Hyland spearheaded the case for the American Civil Liberties Union of New Jersey, arguing that the couple should be granted a full legal divorce to prevent any challenges in Hammond obtaining another marriage license from the Canadian government.
Kinyati did not respond to the divorce filings.
The state Attorney General’s office argued against the granting of the divorce pursuant to its 2007 order that same-sex marriages performed in other regions be treated as civil unions, which have been legal in New Jersey since 2006, and that the state not recognize marriages from other states or countries that are “an affront” to New Jersey public policy.
Jacobson, however, found that awarding an actual divorce, rather than the dissolution of a civil union, was the most appropriate method based on New Jersey law.
“To grant the divorce here is not against public policy,” Jacobson said in the oral ruling. “It’s consistent with the strong marriage-recognition principles that have been practiced since the 1800s.”
Ed Barocas, ACLU-NJ legal director, said the judge’s decision will allow the Hammonds’ separation to be a true legal process that should be recognized by the Canadian government.
“The decisions of New Jersey courts don’t happen in a vacuum,” Barocas said. “If they only called this the dissolution of a civil union, then beyond the four corners of New Jersey it would have been unclear whether that relationship was terminated or not. The only way to ensure that the relationship was fully terminated was to have an actual divorce.”
Barocas noted that in the 2006 New Jersey Supreme Court case Lewis v. Harris, the court found that the state could expand its marriage laws to include same-sex couples, which he said demonstrated that same-sex marriage is aligned with the state’s public policy.
“Every day our family courts deal with marriages from out of state and the understanding is that we’ll recognize them as long as they’re valid and not an affront to public policy. La Kia’s marriage was valid and not an affront to our public policy in any way,” he said. “What the court said last week made sense: If you come to New Jersey with a valid marriage, you’re entitled to leave with a divorce, just as if you come to New Jersey with a civil union, then you’re entitled to the dissolution of that civil union.”
Jacobson noted that her ruling does not mean the state must recognize legal same-sex marriages, which Hyland noted would be the most equitable procedure for same-sex couples.
“This decision is a step in the right direction, but one that never should have had to be made,” said Hyland. “The Attorney General needlessly created confusion and legal problems for these couples. She should simply recognize out-of-state marriages, the only way to ensure equal treatment for couples married outside of New Jersey.”
Following the ruling, Hammond noted the decision will pave the way for her to move on without the complications of further legal proceedings.
“While the day a relationship ends is never happy, I am relieved that the courts of New Jersey are allowing us to move on, rather than keeping our relationship status in legal limbo,” Hammond said in a statement. “Breaking up is painful enough, and I’m happy we won’t have to face the hardship of having to fight just to make it official.”
Jen Colletta can be reached at [email protected].