Domestic Partnerships Basics
A domestic partnership is defined under California law as "a domestic partnership entered into pursuant to the California Domestic Partner Rights and Responsibilities Act of 2002 (Stats. 2002, ch. 853) or the Family Code."
As of January 1, 2015, requirements for entering into a domestic partnership include:
Both persons must be at least 18 years old unless one or both persons are on active duty with the U.S. military.
Both persons must share a common residence .
Neither domestic partner may be married to someone else or a member of another substantially similar domestic partnership.
The couple must be in a committed relationship and have chosen to be jointly responsible for one another’s basic living expenses.
The couple cannot be related in a way that, federal or state law forbids marriage.
While same-sex and opposite-sex couples can enter into a domestic partnership, only same-sex couples can get married in California. And, of course, all domestic partnerships entered into prior to January 1, 2005 are legally recognized as married.
Domestic Partner Legal Rights in California
While domestic partnerships primarily confer the same rights, protections, and benefits as marriage, particularly for California residents, there are some differences. For example, while a court order may be required to change a child’s surname with a birth certificate, this can be complicated for unmarried people by whether either or both parents is a registered domestic partner. A person may use their domestic partnership status to obtain a court order for a name change that a married person could receive by operation of law. With regard to property division at divorce, registered domestic partners have the same rights as married couples for determining community and separate property in their assets, but the issue is complicated by the requirement that registered domestic partners treat any assets and debts held at the time of registration as community property from the date of registration forward. Determining the character of property owned on the date of registration, as opposed to the date of the legal decision to dissolve the partnership, can be far more difficult than the marital date of separation. For most purposes, the date of domestic partnership registration will be considered the equivalent of the date of marriage in a civil divorce for California residents.
Health care decisions are almost identical right now, with some clear exceptions, usually where there is a religious objection involved or where an emergency situation leaves the health care provider with no one to consult regarding the patient’s decision. Replacement is permitted, with consent, but California does allow a domestic partner to execute a power of attorney for health care directly. Domestic partners can make medical decisions for their partner if the partner is unable to do so, but they do have to pay their own bills if the other party did not have insurance.
As domestic partnerships are not recognized in other states, California law does allow a person in a partnership to petition the United States Citizenship and Immigration Services (USCIS) for the ability to remain in the country as a member of a domestic partnership, even if their partner is not a citizen. This will not, however, allow them to become a permanent citizen, only a temporary resident.
Marriage Basics in California
Marriage in California is governed by California Family Code Section 300 through 310. California law gives two people the right to enter into marriage if they are of the opposite sex, are not close relatives, and have the legal capacity to enter into a contract. Unlike many states, California does not have a minimum waiting period for marriage or a residency requirement. Parties must obey a complex series of procedural steps after execution of their marriage license, and the marriage license must be registered with the County Recorder’s Office. Once properly recorded, the marriage is effective even if the marriage license itself was never returned to the County Recorder’s Office.
All California legal marriages grant hundreds of statutory and common law rights. Both you and your spouse hold title to all community property and have shared management and control of it. California recognizes the community property system of owning property and the spouses will jointly own all assets acquired during their marriage. If you separate or divorce, courts will divide community property equally. The community property system is designed to make sure that neither spouse has an unfair advantage over the other if the relationship ends.
California family code section 780 basically states that: "Except as otherwise provided by statute, all duties and powers of a married couple shall equally apply to domestic partners." For example, each spouse shall have a duty to support the other spouse. Under Family Code section 298, registered domestic partners also have a legal duty to support one another. Both spouses owe the other a position of utmost good faith and fair dealing, and a spouse who fails to do so may suffer legal consequences.
Both spouses have the responsibility to make decisions concerning career, where to live and whether to have children. As parents, you and your spouse share the responsibility to care for your children. Courts will expect both spouses to play an active role in the lives and upbringing the children. Courts may consider a spouse’s conduct during the marriage in assessing custody, except in limited circumstances. Courts will also equitably divide the costs of raising the children even before a court awards child support.
Comparing Legal Rights: Domestic Partnership vs Marriage
In terms of legal protections, domestic partnerships and marriages are very similar in California, with some exceptions. For instance, both marriages and domestic partnerships are recognised as good legal standing in relations to inheritance rights, tax benefits, health care decisions, and spousal support. Both partnerships typically extend to couples the right to make each other health care decisions in critical situations, the ability to gain an immigration benefit as the spouse, and an extension on the benefit of the federal Family and Medical Leave Act if a partner is incapacitated. In terms of taxation, domestic partners in California have the right to file state taxes both as a married couple, as a partnership, or as individuals depending on the amount of time they’ve lived together and the degree of financial liability involved.
Both domestic partners and married partners also have the right to access family insurance benefits through their employers, both in California and in any other state. This includes the right to provide other coverage, so long as the employer provides benefits to spouses and dependents as well.
However, there are differences in domestic partnership and marriage that can be significant in some cases. The major difference is that while a marriage requires one to apply for a marriage license and meet certain requirements under state law, a registered domestic partnership is available only to same-sex couples and to opposite-sex couples where one person is aged 62 or older. Further, there’s no residency requirement associated with a domestic partnership. Either partner can live at any state or country without repercussions.
Effects of Federal Benefits
Regarding state benefits, domestic partners and married spouses receive the same benefits. This is not the case with federal benefits. Due to the United States Supreme Court striking down Section 3 of the Defense of Marriage Act ("DOMA") in the recent Edie Windsor case, the treatment of domestic partners versus married spouses under federal benefits has begun to change . However, with regard to some federal benefits, no changes have occurred. Also, some of the rulings benefitting married spouses still do not apply in California – and the laws continue to evolve. As a result, the difference in treatment between legally married and domestic partners is a significant issue when making estate planning decisions, completing income tax returns, and addressing social security benefits.
Transitioning from Domestic Partnership to Marriage
It is not uncommon to hear couples who have entered into a California domestic partnership express that they would prefer to instead be married. In fact, some California domestic partners may even be surprised to learn that in California these two options are not equal. Fortunately, these two commitments are not mutually exclusive. In fact, California provides a legal mechanism to end a domestic partnership and transition the parties to parellel and simultaneous marriage.
The formal process for terminating a California domestic partnership is similar to the process for dissolving a California marriage. Once the decision is made to terminate a California domestic partnership, and one or both parties determines that he or she wishes to pursue marriage, the California Secretary of State Domestic Partners Unit must be contacted. The California Secretary of State Domestic Partners Unit manufactures marriage certificates to fill the need for same-sex couples, and vessels the termination of domestic partnerships as well as the divorce of same-sex couples into the same processor. Because the California Secretary of State Domestic Partners Unit is tasked with the termination of domestic partnerships, it is incumbent upon the parties to both prepare and submit a termination of domestic partnership form. This form is available at www.domesticpartnership.ca.gov. The filing of a termination of domestic partnership form will result in an official termination of the domestic partnership, regardless of if a dissolution of the domestic partnership is filed at the same time. Importantly, couples should note that a marriage and a termination of domestic partnership cannot occur simultaneously. In other words, a marriage cannot take place until the termination of the domestic partnership has been finalized.
Considerations for Same-Sex Couples
While California had previously allowed, since 2000, same-sex couples to register as domestic partners, same-sex marriage remained illegal until the California Supreme Court issued its May 15, 2008 decision in In re Marriage Cases (43 Cal.4th 831). Thereafter, same-sex couples who married in California would be entitled to the same preferential tax treatment and federal recognition that opposite-sex couples received. However, if a domestic partner died and did not have a Will that provided for their partner, the surviving partner would not have standing to sue in probate unless the deceased partner had specified their partner as the beneficiary of their estate. Indeed, prenuptial agreements would have been mainstays for almost all same-sex couples prior to the change in legislation.
In 2003, California’s legislature enacted the California Domestic Partner Rights Act (AB 205), which conferred certain extraspousal rights upon same-sex couples. In so doing, the legislature strove to establish "the full range of partnership rights, responsibilities and benefits for domestic partners and their children" in marriage law (Cal Fam Code § 297.5 and § 297.6). The Family Code was amended to incorporate the provisions of AB 205 in September 2005. As amended, the Family Code prohibited discrimination between same-sex couples and opposite-sex couples in matters of spousal rights and obligations. Opposite-sex marriages were no longer "favored, honored or encouraged" over same-sex partnerships. Eventually, California legislated an act providing full same-sex marriage rights effective June 17, 2008. But the United States Supreme Court stayed that legislation (based on the broader ban contained in Proposition 8) until its decision in Hollingsworth v. Perry, 570 U.S. ___, 134 S.Ct. 2689 (2013) was issued. In December 2013, the state of California began offering marriage licenses to same-sex couples.
As the legislative history of California’s same-sex marriage history shows, the manner in which the legislature characterized same-sex marriages has significant implications. Same-sex partners should be aware of these issues when planning their estate and marital arrangements.
Deciding Between Domestic Partnership and Marriage
When considering entering into either a domestic partnership or marriage, factors to consider include the following:
- Relationship and the quality of the relationship- as each situation is uniquely different, it is impossible to stress the importance of having an open and honest discussion with your partner about the future of your relationship. All possible scenarios no matter how small should be discussed to insure that you both are entering into the relationship for the right reasons and your expectations are clear going forward.
- Legal considerations and the impact of the relationship on your rights- if you don’t think you will ever need legal assistance, then the preceding point is all that matters. However , if you or your partner have a child, have assets of any kind, need to make decisions for an incapacitated partner, or want to be treated as a married couple for health care benefits, all will be impacted by your choice of domestic partnership or marriage.
- Financial considerations and the tax implications- similar to the legal impact, if you don’t have any assets or income and are not expecting to make or need to make any decisions that may be impacted by being married or a domestic partner, then this is also a moot point. However, income combining and estate tax issues can arise that will need to be considered especially if you or your partner have children from prior relationships or you are expecting to inherit any wealth.