by: Peter J. Gallagher (@pjsgallagher)
When asked about same-sex marriage, the musician/politician/author Kinky Friedman is quoted as having said: “I support gay marriage. I believe they have a right to be as miserable as the rest of us.” In a recent decision, Groh v. Groh, a New Jersey trial court ruled that, if same-sex partners are "as miserable as the rest of us" (present company excluded, natch), they can now get a divorce for the same reason as "the rest of us" — irreconcilable differences. Interestingly, while Groh dealt with the often divisive issue of same-sex marriage (or, more accurately, divorce), it was a lesson in the much less divisive practice of statutory interpretation.
In Groh, plaintiff and defendant entered into a civil union only to file competing claims to dissolve the civil union five years later on the no-fault grounds of irreconcilable differences. The parties entered into a written settlement agreement that resolved all of their differences, and “sought to conclude the proceedings via dual judgment of dissolution.” However, N.J.S.A. 2A:34-2.1, which sets forth the grounds upon which the dissolution of a civil union can be based, does not include irreconcilable differences. Accordingly, the court had to decide whether it could grant the dissolution on those grounds.
The court ultimately concluded that it could. In arriving at this conclusion, the court traced the legal history of civil unions in New Jersey, which began with the New Jersey Supreme Court decision in Lewis v. Harris. In that case, the Supreme Court held that same-sex partners in committed relationships should have the same rights as those of married, heterosexual couples, and advised the Legislature to enact legislation recognizing these rights. In response, the Legislature passed the New Jersey Civil Union Act (the “Act”) which recognized civil unions. At the same time, the Legislature also enacted N.J.S.A. 2A:34-2.1, which, among other things, listed the permissible reasons for dissolving a civil union under the Act. Other than a handful of semantic differences, this list was the “mirror image” of the list of permissible reasons for divorce involving married, heterosexual couples. Accordingly, the Groh court concluded that “the Legislature’s intent was to create a symmetry between the recognized causes of action for divorce and dissolution of a civil union in a manner consistent with the terms and constitutional spirit of Lewis v. Harris.”
At the time it was enacted, N.J.S.A. 2A:34-2.1 did not include “irreconcilable differences” as a legal basis for the dissolution of a civil union. But, the Groh court noted that this was not surprising because, at that time, New Jersey did not recognize irreconcilable differences as a basis for divorce between married, heterosexual couples. This all changed, and quickly, which is what led to the ambiguity at issue in Groh. In the two months between when the Act was passed and its effective date, the Legislature recognized irreconcilable differences as a valid basis for divorce between married, heterosexual couples. But, when it did so, it failed to amend N.J.S.A. 2A:34-2.1 to add irreconcilable differences to the list of acceptable reasons to dissolve a civil union. Therefore, under a strict reading of N.J.S.A. 2A:34-2.1, irreconcilable differences was not a valid basis to dissolve a civil union.
Notwithstanding this omission in the statutory language (which the court chalked up to “drafter error”), the Groh court held that irreconcilable differences was available to same-sex couples seeking to dissolve their civil unions. In arriving at this decision, the court emphasized several things. First, it noted the history of the various statutory provisions, which demonstrated a legislative intent to treat same-sex divorce and heterosexual dissolution the same. In this regard, it noted that the Act contained a provision providing that, “whenever any law makes reference to ‘marriage,’ ‘same shall include a civil union pursuant to the provisions of [the Act].’” Second, the court relied upon a signing statement that was issued when irreconcilable differences were recognized as a basis for divorce, in which the Governor stated that it was his “clear understanding that [the] bill [would] be applicable to same-gender couples who have entered into a civil union as well as to mixed-gender couples joined in matrimony.” Third, the court noted that, shortly after irreconcilable differences were recognized as a basis for divorce, the Administrative Office of the Courts advised all New Jersey courts that it interpreted the change in the law as being applicable to divorce as well as the dissolution of civil unions. Based on all of this, the court held that irreconcilable differences was a valid basis to dissolve a civil union even though it was not included in N.J.S.A. 2A:34-2.1.
Curiously, it does not appear that one side in Groh argued in favor of allowing dissolution of the civil union for irreconcilable differences while the other side argued against it. Instead, it appears, from the decision, that it was an issue that the court felt it needed to address before approving the dissolution sought by the parties. This means, among other things, that an appeal is unlikely because neither party “lost” at the trial court level. Therefore, as of now, the holding in Groh is just the holding of one trial court, which is not binding on any other court in the State. It remains to be seen whether the Legislature will formally address the ambiguity identified by the court in Groh (and, if it does, whether it will resolve it the same way that the Groh court did), or whether another case will make its way to the Appellate Division or the Supreme Court such that the decision in Groh is either adopted as binding authority or repudiated.