Domestic Partnership Information

Forming & Dissolving Domestic Partnerships in California

 

In California, same sex couples may enter into a domestic partnership. A domestic partnership is a legal relationship between two persons, which is similar to, but different than, a legal marriage. Also, a domestic partnership creates rights and responsibilities that are similar to the rights and responsibilities related to a legal marriage.

 

Note: A domestic partnership may be created by two persons of the same sex who are cohabitating, but there are limitations to the creation of this type of legal union that otherwise do not exist for persons who seek to create a domestic partnership between two persons of the same sex. This article contains information as it relates to domestic partnerships between two persons of the same sex. For more information on different sex domestic partnerships contact our divorce and family law attorneys for a free consultations. Also, the laws on domestic partnership are in constant flux; therefore, it is best to seek the advice of an attorney before creating, or dissolving, a domestic partnership.

 

Domestic Partnership Benefits: Some of the benefits of creating a domestic partnership include:

1. Creating a legal union and bond between two persons of the same sex, who may not remarry due to personal or religious concerns (i.e. honor a predeceased prior spouse, do not believe in a religious-backed ceremony, etc.).

2. Insurance Benefits (i.e. benefits related to health, dental, vision, vehicle, life etc.);

3. California employment and disability benefits;

4. Medical emergency rights (i.e. right to make emergency medical decisions, hospital visitation, etc.);

5. Stepparent adoption rights (i.e. adopt a child, child custody, child visitation, child support, child move away (relocation) rights, right to change child’s name, guardianship, etc.);

6. Employment benefits, survivor death benefits, inheritance benefits, bereavement and/or family related medical leave;

7. Disability benefits (California state disability);

8. Support Rights (i.e. right to be financially supported by domestic partner after dissolution of domestic partnership and/or marriage);

9. Domestic partners name changing rights (surname changed to match, or combine domestic partners);

10. The right to have property and assets obtained during marriage divided equally at dissolution of the domestic partnership or according to a domestic partnership agreement (similar to community property rights and prenuptial and/or postnuptial agreements);

11. Tuition reduction and housing opportunities at California colleges and universities;

12. Possible conjugal visit rights at California state prisons (limitations apply);

13. Right to file California state taxes jointly;

 

Note: Domestic partnership creation may also create liabilities between the domestic partners. Those liabilities are similar to community property debts acquired by married person under a traditional marriage (i.e. tort liability, assumption of debts, tax liability, issues related to bankruptcy, duty to provide support, etc.).

 

Domestic Partnership v. Marriage

 

A domestic partnership is similar to, but different than, a legal marriage. Some of the ways in which the two differ include:

1. A domestic partnership is not recognized in every state or by the federal government. This means that some state and federal benefits related to marriage might not be available to domestic partners (i.e. military benefits, chain-migration immigration benefits, “Waiver to Deportation” immigration rights, sponsorship of non-U.S. citizen rights, non-California state health benefits, federal tax filing status benefits, federal marriage benefits, and more).

2. A domestic partnership requires a commitment. This means that the domestic partners must demonstrate a commitment to the legal union (i.e. cohabitation for a period of time, documents that state a commitment to form a legal union, etc.). On the contrary, a legal marriage does not require a commitment between the spouses.

3. A domestic partnership may be dissolved summarily if certain condition are met. A summary dissolution is of a domestic partnership is similar to a nullity of marriage. In other words, if certain conditions are met, domestic partners may dissolve their legal union in such a way as though the legal union never occurred in the first place. With a marriage, the equivalent is called a “nullity of marriage.” However, with a nullity of marriage, the requirements are more difficult for the spouses to meet than the requirements which are related to the summary dissolution of a domestic partnership.

4. A domestic partnership does not create presumed parentage of children born during the domestic partnership. Instead, in order for a legal relationship between a domestic partner and his or child to be formed, the domestic partner must either legally adopt the child, or establish parentage through a paternity suit.

 

Note: Similarities between a domestic partnership and a legal marriage include, but are not limited to, the following:

1. Right to control and manage jointly held property and assets (similar to community property rights acquired during marriage);

2. Right to be supported as a domestic partner (similar to alimony or spousal support);

3. Right to child custody, child support, child visitation (parenting time);

4. Right to predetermine how assets and debts will be divided at dissolution of the domestic partnership (similar to prenuptial and postnuptial agreements);

5. Right to pursue domestic violence restraining orders (DVRO);

6. Liabilities of domestic partners as it relates to the torts of his or her domestic partner (civil wrongs and contract damages that occurred, or were acquired, during the domestic partnership); and more.

 

Forming a Domestic Partnership

 

A domestic partnership is formed by registering certain information with the state of California (declaration of domestic partnership [Form DP-1]). In essence, the requirements for registering a domestic partnership include:

1. Both proposed domestic partners must be over the age of eighteen (18). In some cases, a person under the age of eighteen (minor) may register for a domestic partnership. In order for a minor to register a domestic partnership in California the minor must have his or her legal parent or guardians’ consent, or become an emancipated minor;

2. The proposed domestic partners must be unmarried at the time of the registration of their domestic partnership. If the proposed domestic partner enters into a domestic partnership while he or she knows that either he or she is legally married, or that his or her proposed domestic partner is already legally married, then that person may be charged with the crime of bigamy (PC 281);

3. The proposed domestic partners must not be related by blood to the third degree of consanguinity (i.e. parent, sibling, uncle, aunt, child, cousin to the first degree, etc.).

4. The proposed domestic partners must share a residence and both persons must be of the same sex or both over the age of sixty-two (62);

5. The proposed domestic partners must both be capable of consenting to a domestic partnership.

 

Note: Domestic partners may marry each other during their domestic partnership without violating California bigamy laws. Also, domestic partnership laws are in constant flux; therefore, before a person attempts to form a domestic partnership (or terminate a domestic partnership), that person should discuss the current state of California law with an experienced family law lawyer.

 

Domestic Partnership Agreements

 

Proposed domestic partners are encouraged to enter into a domestic partnership agreement before finalizing their domestic partnership. A domestic partnership agreement is similar to a prenuptial agreement related to a traditional marriage. In fact, a domestic partnership agreement is not called a prenuptial agreement only for the fact that “nuptials” are not required to form a domestic partnership; therefore, the agreement in a domestic partnership agreement does not come before (“pre”) any nuptials.

 

Essentially, a domestic partnership agreement is a formal agreement, which is written, attested to, and signed by and between both proposed domestic partners, which predetermines the division of assets and debts possessed by the proposed domestic partners in the event of a termination of the domestic partnership.

 

A domestic partnership agreement will usually include terms related to any of the following: domestic partner support, if any, after termination of the domestic partnership or death of either partner, division of assets and debts acquired during the partnership (i.e. real estate, personal items, intellectual property, business valuation division, stock and bond, cash on hand, etc.); division of custody of pets; and more.

 

Note: Some terms that are placed in a domestic partnership agreement must meet requirements outside of the agreement itself in order to become valid (i.e. domestic partnership support terms must be not encourage termination of the domestic partnership; each proposed domestic partner must have separate attorneys in order to properly waive any domestic partnership support rights, etc.). Also, a domestic partnership agreement that purports to predetermine the outcome of child custody, child support, and/or child visitation (parenting time) rights is not valid. This is because the proposed domestic partners may not usurp the court’s authority to make orders that are in the best interest of the child.

 

Important: Persons who choose to enter into a domestic partnership agreement should contact a lawyer familiar with domestic partnership agreements and/or prenuptial agreements. A person’s rights to property and money could be severely and negatively impacted where poor drafting of a domestic partnership agreement by non-lawyers is invalidated by the court for lack of required legal form, ambiguity in the agreement’s terms, and more.

 

Dissolving a Domestic Partnership

 

There are two ways to dissolve a domestic partnership: 1) summary dissolution, and 2) traditional dissolution.

 

Note: Dissolving a domestic partner is also sometimes called termination of a domestic partnership.

 

Summary Dissolution: A summary dissolution of a domestic partnership is allowed where certain conditions are met, including the following:

1. Both domestic partners agree to end the domestic partnership;

2. The domestic partnership has not been registered with any jurisdiction for more than five (5) years prior to the date of the filing of the Notice of Termination of Domestic Partnership;

3. No children were born or adopted by either domestic partner during the domestic partnership and neither partner is pregnant at the time of the filing of the Notice of Termination of Domestic Partnership;

4. Neither domestic partner purchased land during the domestic partnership, either jointly, or separately;

5. Neither Domestic partner rents land or buildings other than the residence where the partners live;

6. Neither partner, jointly or separately, acquired debt of more than six thousand dollars ($6,000) during the domestic partnership, not including vehicle(s);

7. Neither domestic partner, either jointly, or separately, acquired more than forty-five thousand dollars ($45,000) worth of property during the domestic partnership, not including vehicle(s);

8. Neither domestic partners acquired more than forty thousand dollars ($40,000) worth of separate property during the domestic partnership, not including vehicle(s);

9. Both domestic partners agree to forgo financial support after the termination of the domestic partnership;

10. Both domestic partners have either entered into a domestic partnership agreement that predetermines the respective entitlement(s) and responsibilities related to assets and debts, if any, which are acquired during the domestic partnership, or the domestic partners agree in writing that no assets and/or debts were acquired or assumed during the domestic partnership; and

11. The domestic partners file a Notice of Termination of Domestic Partnership with the state of California (Form NP/SF DP-2).

 

Note: A summary dissolution of a domestic partnership is similar to a divorce (dissolution of marriage; it is not similar to a legal separation or a nullity of marriage.

 

Traditional Dissolution

 

If the domestic partners do not qualify for a summary dissolution of a domestic partnership (see above), then their options are limited to either a traditional dissolution of domestic partnership, or a finding that the domestic partnership was not valid from its inception due to bigamy, incest, fraud, or non-valid consent (similar to a nullification of a valid marriage).

 

With traditional dissolution of a domestic partnership, the partners must use the family law courts to terminate their domestic partnership. The issues and processes related to a traditional dissolution of a domestic partnership are similar to those found in traditional divorce. For more information, see Divorce, Community Property, Prenuptial Agreements, and Post-Nuptial Agreements.

 

To learn more about domestic partnerships in California, including how to form a domestic partnership, how to end a domestic partnership, and what the difference is between a domestic partnership and a traditional marriage, contact our legal team of successful and experienced family law attorneys. Our attorneys can help you draft a domestic partnership agreement, register a domestic partnership in California, and even dissolve a domestic partnership if necessary. We offer first time consultations at no cost. Call today!

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