Delaware’s Civil Union and Equality Act goes into effect on January 1, 2012. For my readers considering entering into civil union in that state, here’s some information that might help:
A civil union license is required. Due to the holiday, most locations will not begin issuing licenses until January 3rd. There is a mandatory 1-day waiting period between issuance of the license and your ability to solemnize your civil union through an official legal ceremony. According to Lambda Legal, “[a] Clerk of the Peace may waive or shorten the waiting period for good cause, and the New Castle County Clerk of the Peace may make these waivers available to allow couples to start entering into civil unions right away.”
Delaware will offer civil union licenses to residents of that state as well as residents of other states who meet the eligibility requirements.
If you have already obtained an out-of-state marriage, civil union or ‘substantially similar legal relationship’ (i.e. a California registered domestic partnership), Delaware will treat that union as a civil union as of January 1st. Be advised that not all out-of-state registered domestic partnerships will qualify to be treated as civil unions under Delaware’s law. Lambda Legal says that “Wisconsin registered domestic partnerships, for example, which entail far fewer rights and responsibilities, are unlikely to qualify as civil unions in Delaware.”
Because there is no procedure for registering or recording such other out-of-state marriages, civil unions and domestic partnerships as civil unions in Delaware, you will have to notify those from whom you are seeking legal recognition of your Delaware civil union status. Lambda Legal cautions that “[i]f you already registered with an employer for domestic partner benefits or with a county or city as domestic partners, you would still need to enter into a civil union to receive the full range of benefits, responsibilities, rights, and protections available under the civil union law to civil union partners.”
Even if you do enter into civil union in Delaware, you are still strongly urged to work with your attorney to draft documents of protection such as a Last Will and Testament, health care documents, hospital visit authorization and the like because most other states and foreign countries will not recognize your Delaware civil union.
It is equally important to pursue step-parent adoptions for the same reason. Although Delaware will presume you both to be the legal parents of any child born to you after a civil union, not all states or foreign countries will recognize your parentage. In such other jurisdictions, you are considered to be legal strangers. I have written extensively on these issues in this space (generally in the context of couples who marry in Connecticut) — but the information applies equally to couples who enter into civil union in Delaware. Read related posts here and here and here.
Important Note: If you are planning to enter into civil union in Delaware, you may wish to contact an attorney in that state who is familiar with LGBT law. Please don’t e-mail or call me with questions about your rights under Delaware’s law … or to determine if your out-of-state legal status as a couple qualifies as a civil union in Delaware. I am not licensed to practice law in Delaware and will be unable to advise you.
To those couples who will be entering into civil union in Delaware next year, I offer my sincerest congratulations!
For more on Delaware’s civil union law, download Lambda Legal’s fact sheet here.
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copyright 2011 Irene C. Olszewski