My partner and I have been together for 13 years. We participated in a civil union in Vermont in 2007. We moved to Nevada in 2012. We have a 3-year-old daughter via surrogate and egg donor. I am the biological father. We are splitting up. My question is, now that the U.S. Supreme Court says that we have marriage equality, is our Vermont civil union considered a marriage? Should I be getting a divorce in Nevada or going through some other process? What about custody of our daughter? Can we resolve our custody issues at the same time we resolve our financial issues?
Nevada has actually recognized marriage equality since 2014 due to a federal Nevada district court decision that was upheld by the United States Ninth Circuit Court of Appeals. Beverly Sevcik, et al. v. Brian Sandoval, et al. 911 F. Supp 2d 996 (D. Nev., 2012); Susan Latta, et al. v. C.L. Otter, et al. 771 F.3d 456 (9th Cir., 2014). In June 2015, the United States Supreme Court handed down its decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), where it determined that it was unconstitutional for states to deny same sex couples the right to marry. The significance of this decision in Nevada is that it thwarted any legislative efforts in Nevada to deny marriage equality pronounced by the courts.
The U.S. Supreme Court also held that states must recognize marriages of same-sex couples whose marriages are validly entered into in other states. The Court did not, however, rule on whether states must consider “marriage equivalents”, such as civil unions and domestic partnerships, as legal marriages.
There are no Nevada Supreme Court cases addressing this issue, although there will likely be in the future. If Nevada is like the rest of the country, there will be inconsistent decisions from lower courts regarding this legal uncertainty. Across the country there have been cases where civil unions have been dissolved via traditional means such as divorce and annulment. There have also been cases where the court has dismissed the divorce petition claiming lack of jurisdiction to enter a divorce decree in a civil union.
If I am the attorney in this case, I am going to bring a divorce action in Nevada to dissolve the civil union and I am going to ask the court to recognize a Vermont civil union as a marriage capable of being dissolved via a divorce action. In Vermont, a civil union is treated the same as a marriage. Nevada should give full faith recognition to a Vermont civil union under the legal doctrine of comity.
With respect to child custody issues between same-sex partners, Nevada has a very broad parentage statutes. Same sex partners will be recognized as parents of children born of their relationship, regardless of biological link, so long as both fit the legal definition of an “intended parent.”
Jessica H. Anderson
Divorce Attorney Reno, NV
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