Effective May 1, the Colorado Civil Union Act became law. This law provides same-sex as well as opposite-sex couples who enter into a valid civil union most of the same rights, benefits, protections, duties, obligations and responsibilities as married spouses, at least in matters governed by Colorado state law.
The benefits for couples in a legally valid civil union include, but are not limited to, the ability to bring lawsuits for wrongful death, emotional distress and other causes of action (previously only available to married individuals), benefits related to the transfer of property either during life or at death, public assistance benefits pursuant to state law, state workers compensation and unemployment benefits and adoption law benefits.
An important benefit is that domestic relations laws apply when a civil union is terminated. These are found in Colorado’s Uniform Dissolution of Marriage Act. The protections of the UDMA include the ability to dissolve the civil union and have the courts of Colorado equitably divide the unions’ property, determine the best interests of the children of the union and order child support and spousal maintenance. Civil union partners are also entitled to all of the protections afforded married couples regarding domestic abuse issues.
Dissolution remedies for civil-union couples are, however, more problematic than for married couples. For example, under the UDMA, spousal maintenance can be awarded to a spouse if that spouse has a need for support from the other party and the other party has the ability to pay spousal maintenance. Spousal maintenance has tax implications for both parties. The spousal maintenance paid by the payor is tax deductible, and the money received from spousal maintenance for the payee is income for tax purposes. However, under the current federal tax code, spousal maintenance between civil-union partners would probably not be tax deductible by the payor, and may even carry gift tax consequences. Similarly, there may be tax consequences to property divisions in civil-union dissolution cases that would not exist in a marriage dissolution.
On Aug. 29, it was announced that same-sex couples in a valid, legal marriage would receive recognition from the IRS for tax filing purposes. As of the 2013 tax year, same-sex couples in valid marriages will no longer be able to file as single and will instead need to file as married filing jointly or separate. However, this would not extend to couples in civil unions, because a civil union is not a “marriage.” Indeed Colorado statutes provide that because current federal law prohibits couples who are not in a legally valid marriage to file jointly, partners to a civil union cannot file a joint Colorado tax return because the Colorado tax return is tied to federal tax percentages.
Another significant legal benefit to same-sex couples or unmarried opposite-sex couples in a civil union is found in Colorado law, which provides that a child born during the civil union who is the biological child of one of the partners to the civil union is presumed to be the child of both partners subject to the provisions of Colorado Revised Statutes section 19-4-105. However, for the protection of the non-birth parent, a formal adoption through the same process outlined for a stepparent adoption is recommended.
The law provides a procedure for obtaining a civil-union certification, which must be strictly followed.
There are many benefits to a civil union certification, especially for same sex couples, but there are also many complications and potential unanticipated problems if the process is undertaken without sufficient awareness of what can and cannot be accomplished.
This article was co-authored by Deborah Anderson and Nicole Vette of the Durango law firm of Anderson & Baker, LLC, which specializes in domestic relationship law. Reach them at da@andersonbaker.com, or, nv@andersonbaker.com.
