Responding to the difficulties encountered by same-sex couples who entered into Vermont civil unions (and, beginning in 2009, same-sex marriages) and then lived in other states where their legal unions were denied recognition for purposes of dissolution or divorce, Vermont amended its divorce and annulment law in 2012 to provide that couples legally united in Vermont and living elsewhere who sought to dissolve their unions but had no vehicle to do that in the courts of their domiciliary state could obtain a dissolution in Vermont without meeting any residency requirement there. (Traditionally, states have required that at least one spouse be a resident of the state in order to seek a divorce in its courts.) In Solomon v. Guidry, 2016 VT 108, 2016 Vt. LEXIS 111, 2016 WL 5338492 (September 23, 2016), the court unanimously ruled that this law remains relevant, even though the result of Obergefell v. Hodges is that all states must recognize legally contracted same-sex marriages, because there is still no uniformity about interstate recognition of civil unions.
Melissa Solomon and Jane Guidry entered into a civil union on July 24, 2001, in Brattleboro, Vermont, shortly after Vermont became the first state in the nation to provide civil unions for same-sex couples. They currently reside in Wake County, North Carolina. They separated by May 2014. They have no children. In 2015, they agreed to dissolve their civil union to avoid any legal complications from its continued existence, and filed an uncontested complaint in the Vermont Superior Court, Windham Division, accompanied by a stipulation as required by the amended divorce statute. Judge Karen R. Carroll dismissed the complaint, finding that “the parties failed to produce evidence that they attempted to obtain a dissolution of the civil union in North Carolina.” Judge Carroll opined that if they first sought such a dissolution in the North Carolina courts and were turned down, “the proper appeal should be taken here.” Carroll asserted that if the Vermont courts “continue to accept these filings and allow courts in other states to ignore precedent [set by Obergefell], the situation will never be resolved.”
Solomon appealed the dismissal, arguing that the court had exceeded its constitutional authority by imposing a requirement not specifically required by the statute, which was reversible error, by incorrectly applying Obergefell, which does not deal with the recognition of civil unions across state lines, and by misconstruing the plain language and legislative intent of the statute, which was intended to provide a way for out-of-state couples who entered civil unions in Vermont to be able to dissolve them if they lived in states that did not recognize them.
Surveying the legislative history of the statutory provision in question, 15 Vt. Stat. Ann. Section 1206(b), the court noted that the purpose of the amendment passed in 2012 was “to provide access to a civil union dissolution or a divorce to nonresident couples joined in a Vermont civil union or Vermont marriage who are legally barred from dissolving the union in their state of residence.” The Legislature specifically noted: “While an opposite-sex out-of-state couple who marries in Vermont can get divorced in the state of residence of either party, most same-sex out-of-state couples joined in a Vermont civil union or marriage do not have this option,” since at that time most states recognized neither civil unions nor same-sex marriages. Of course, Obergefell changed this situation respecting same-sex marriages as of June 26, 2015, but the U.S. Supreme Court did not address the issue of civil unions, which was not presented in the context of the marriage equality litigation.
Under the Vermont statute, a nonresident civil union can be dissolved by the Family Court in the county where the civil union certificate was originally filed if the following criteria are met: the civil union was established in Vermont, neither party’s state of legal residence recognizes the Vermont civil union for purposes of dissolution, there are no minor children who were born or adopted during the civil union, and the parties file a stipulation together with a complaint that resolves all issues in the dissolution action. The exclusion of couples who have children is likely due to the fact that a Vermont court would not have jurisdiction over non-resident children for the purposes of deciding issues of their custody and visitation. This process is not available for contested dissolutions that would involve litigation over property disposition, for example, since a Vermont court would not have jurisdiction to allocate property rights of non-residents, either. Both parties have to sign the stipulation, submitted under oath, which has to attest that all these criteria are met, including the criterion that their domiciliary states do not recognize the civil union or provide a legal mechanism for its dissolution.
Wrote Justice Marilyn Skoglund for the court, “Because civil marriage and civil unions remain legally distinct entities in Vermont and because Obergefell mandated that states recognize only same-sex marriages, uncertainty remains as to whether Obergefell requires other states to recognize and dissolve civil unions established in Vermont. For that reason, Section 1206(b) is still necessary to remedy the issue originally addressed by the Legislature in 2012.” In this case, the parties followed the requirements of that statute to the letter, and went even further by submitting an affidavit from a North Carolina attorney whose practice is “dedicated to providing services to the lesbian, gay and transgender community, including domestic relations, estate planning, and life planning.” In this affidavit, the attorney attested that while North Carolina “grudgingly” follows Obergefell and recognizes same-sex marriages for divorce proceedings, “it will accord no recognition to a ‘civil union’ or ‘domestic partnership’ for [dissolution] purposes.” The Vermont Supreme Court agreed with Solomon and Guidry that this affidavit is sufficient to satisfy the criteria of the statute, and there was no need for them to go through the motions of seeking a dissolution in a North Carolina court before applying for one in Vermont.
“It would reach beyond both the written letter and the Legislature’s intent to hold that the ‘acknowledgment’ must also include actual showing of an attempt to file in the other state,” wrote Justice Skoglund. The court reversed the trial judge’s ruling and remanded the case for that court to “follow the dictates of Section 1206(b).”
Solomon is represented by Amy K. Butler of Montpelier, Vermont. Guidry, who urged the court to grant Solomon’s appeal, is pro se in this matter.