Marriage Equivalent Californias Domestic Partnership Law

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partner separate and end up in a dispute about which relationship is valid and
what was your “date of marriage,” and which state’s laws you’ll use to end your
relationship.
related topic
Chapter 3 has information about tax filing status if you are legally
married, and also addresses other practical issues about recognition of your
marriage. Chapter 5 explains the effect of marriage on your status as parents, if
you have kids.
Marriage Equivalent: California’s Domestic Partnership Law
California’s domestic partnership law has evolved from providing some
limited rights, such as hospital visitation, when it was first enacted in
2000, to offering a comprehensive scheme that gives domestic partners
essentially all of the same rights and responsibilities as spouses under state
law. The new law went into effect on January 1, 2005, with some of its
provisions having a retroactive effect, as discussed below. We’re treating
California separately from the other marriage-equivalent states because it
has the largest number of legally registered couples and some of the most
settled rules.
Requirements for Registration
Same-sex partners must register with the California Secretary of State
(www.ss.ca.gov) to be eligible for rights and benefits under the domestic
partnership laws. Registering with a California city, county, or private
employer that also offers domestic partner registration is not enough to
get the benefits and obligations provided for in the state law, even if you
believed in good faith that you were obtaining all those rights.
The requirements for state registration, which costs $33, are:
• Both partners must be 18 or older and capable of consent (if you are
reading and understanding this book, you are capable of consent).
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• Neither partner may be married to, or in a registered domestic
partnership with, someone else.
• The partners must live together (but it’s okay for one or both
partners to own another house that they use part time, and you
don’t have to both own the house you live in). You don’t need to
live in California in order to register, but many other states won’t
recognize your domestic partnership, so as a practical matter there’s
not much point in coming in from out of state to register unless you
plan on sticking around.
• The partners must not be related by blood.
• The registration form must be notarized.
In addition, the partners must both be of the same sex, or one partner
must be over the age of 62. Opposite-sex couples in which neither
partner is 62 or over are not eligible to register as domestic partners. (The
62-or-over exception exists because for many people in that age bracket,
marriage can have a negative effect on Social Security and other benefit
entitlements. Allowing people in this situation to register as domestic
partnerships means they can take advantage of the benefits of marriage
without the potential downsides.)
When you register, you must attest that you meet the above
requirements. You also have to agree that if your relationship ends when
you live somewhere else, you can use a California court to divorce. This
means the California court can process the legal paperwork involved in
ending your relationship and decide how your property will be divided
if you and your partner can’t reach your own agreement. If the state
you’re living in when you separate won’t dissolve your relationship in its
courts, this provision will allow you to use a California court to officially
terminate your domestic partnership.
The Domestic Partner Rights and Responsibilities Act went into effect
on January 1, 2005. If you registered before that date, all of the new rules
apply to you—you don’t need to reregister. And the provisions of the law
are retroactive to the date of your registration, a rule which undoubtedly
will give rise to litigation as couples break up and argue about who owned
how much of what, and when.
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We Left Our Hearts in San Francisco:
The Fight for Same-Sex Marriage in California
On February 12, 2004, San Francisco Mayor Gavin Newsom made history
when he ordered the city to begin issuing marriage licenses to same-sex
couples. Phyllis Lyon and the late Del Martin, pioneers in the gay rights
movement who had been together 50 years, were the first couple to take
their vows. After that, thousands of couples wed—before the state Supreme
Court put a stop to the marriages in March, and in June issued an opinion
voiding all of the marriages that had been performed.
But Mayor Newsom and all the couples who married during the brief
window of opportunity started something. A lawsuit on behalf of some of
the couples who married and then had their marriages voided resulted in
an historic victory in 2008 when the California Supreme Court ruled that
the ban on same-sex marriage was unconstitutional. Unfortunately, that
victory was short-lived—in November, the voters passed a constitutional
amendment that reinstated the ban, and the amendment itself was upheld
by the state court as constitutional. While we have grave doubts as to the
legal wisdom of that decision, it remains the law. A federal court decision in
San Francisco declared the initiative unconstitutional, and in early February,
2012, the ninth Circuit Court of Appeals Upheld that decision. However,
the losing side in that case is preparing to appeal the decision. Legislation
confirmed the continuing validity of marriages performed between June
and November, 2008, but after November 5, 2008, only the marriageequivalent domestic partnership has been available to same-sex couples in
the Golden State.
Resource
Visit the California Secretary of State’s website. For more information
about domestic partnership, or to download the registration form, go to www.
ss.ca.gov.
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Rights and Responsibilities of California
Registered Domestic Partners
Domestic partnership in California now carries with it a wide range of
rights and responsibilities. All of these rights and responsibilities also
apply to same-sex couples married during the June to November window
in 2008. All of these couples are subject to the following rules:
• Domestic partners have community property rights, meaning that
unless the partners agree otherwise in writing all income earned or
property acquired by either partner during the partnership belongs
to both partners equally, regardless of who earned or acquired it.
This rule is retroactive to the date of registration, even though you
might not have known when you registered that these rights would
be involved.
• Each domestic partner has an equal right to manage and control
community property (the income and property acquired by either
spouse during the partnership), and an obligation to deal with the
property in ways that will benefit both partners.
• The couple’s community property is liable for community debts
(those incurred during the partnership), and each partner may
be responsible for debts incurred by the other partner during the
partnership.
• A child born into a registered domestic partnership will be
considered the legal child of both partners. Technically, no adoption
proceeding should be necessary—but legal experts consider it wise
to do an adoption to ensure that the second parent’s rights are fully
protected. Chapter 5 has more about this.
• Registered domestic partners must receive the same employee
benefits as spouses, under a 2007 law that requires even employers
with out-of-state home offices to provide the same level of benefits.
• Transfers of real property between domestic partners, whether in
the course of the relationship or when the relationship ends, do not
result in property tax reassessment (this applies to California state
property tax only, not to federal tax questions of any kind).
• Domestic partners have the same privilege as spouses to refuse to
testify against each other in court.
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• Domestic partners have the same rights as married couples to family
student housing, senior citizen housing, and other housing benefits.
• A surviving domestic partner has the right to make anatomical
gifts, consent to an autopsy, and make funeral arrangements for a
deceased partner.
• Upon separation, an economically dependent partner has the right
to seek spousal support from his or her former partner.
• As of tax year 2007, registered domestic partners must use the same
filing status as married couples.
In addition, domestic partners and spouses have the rights to:
• sue for the wrongful death of a partner
• make health care decisions for a partner who becomes incapacitated
• inherit just what a spouse would if the partner dies without a will
• use sick leave to care for an ill domestic partner or the child of a
domestic partner
• relocate with a partner without losing eligibility for unemployment
benefits
• apply for disability benefits on behalf of an injured or incapacitated
partner, and
• deduct from taxable income the cost of a domestic partner’s health
insurance or another benefit for state income tax purposes.
Under a related law, all types of insurers in California—health, life,
disability, automobile, and soon—must provide identical coverage
to domestic partners and spouses. So if your employer offers health
insurance benefits to spouses of employees, your domestic partner is
entitled to those same benefits. The same goes for an auto insurance
company that gives lower rates to spouses who jointly own their cars and
share the same insurance policy.
Ending a California Domestic Partnership
The rules for terminating a domestic partnership changed dramatically
with the new law in 2005. Before that, it took only a one-page form—
signed by only one partner—to end a domestic partner relationship.
Now, almost all registered domestic partners will need to file a formal
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dissolution proceeding in court, just as heterosexual married couples do.
You’ll have to exchange financial information and enter into a formal
settlement agreement to divide your property and, if you have kids, to set
out a plan for coparenting.
This involves quite a bit of paperwork—but it doesn’t mean you have
to go through a knock-down, drag-out divorce. The court will have to
approve the termination of your partnership, but you and your partner
can still agree on how you want to divide your property and debts, and
deal with custody and visitation of your kids. Mediation is a great option
for making these decisions together. There’s more about mediation, and
about what to do when a relationship ends, in Chapter 10.
If you registered in California and you live in another state when you
break up, you can still terminate your domestic partnership in California
if the courts in your new home state won’t recognize your partnership.
But if neither of you ever lived in California, it’s unclear whether
California law applies to your divorce—for example, whether community
property rules apply. And if you have children, the divorce might be
complicated by special laws about where custody cases can be heard.
You’ll probably want to talk to a lawyer if you are registered as California
domestic partners but are living in another state.
Domestic Partners and Taxes
The advent of joint tax filing for domestic partners in California (and the
other marriage and marriage-equivalent states) brings with it a host of
complicated questions. For example, if your domestic partner receives
insurance benefits through your employment, your employer is responsible
for tracking benefits for domestic partners and letting you know what was
paid on behalf of your partner, and—unlike those of married spouses—
those benefits are taxable. Also, in the community property states, you
may treat your total income as community property for state tax purposes,
but not federal. It’s important that you consult a tax professional for
advice about filing status and how to deal with income, employee benefits,
exemptions, and the like.
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Do I Have to Go to Court?
A few domestic partnerships can be terminated in California without
court approval, but you must both agree to the termination, and all of the
following things must be true:
• There are no children of the partnership, and neither partner is
pregnant.
• You have been domestic partners for five years or less.
• Neither of you owns any real property, either in California or anywhere
else, and if you have a lease, it is not longer than a year and doesn’t
include an option to purchase the property.
• You don’t have debts of more than $4,000 that were incurred during
the domestic partnership (not counting car loans).
• You don’t have jointly owned assets (other than cars) that are worth
more than $32,000, and neither of you has separate assets worth more
than $32,000.
• You and your partner have a written agreement about how you will
divide your assets and debts, and you have signed any documents
needed to accomplish the division.
• You both give up any right to get support from each other.
• You both have read and understood a brochure prepared by the
California Secretary of State relating to the termination of your
partnership.
If you meet all of these requirements, you can file a one-page form, called
Notice of Termination of Domestic Partnership, to terminate your domestic
partnership, and the termination will become final six months after you file
the form with the Secretary of State. Otherwise, you will need to use a court
process, as described in the main text.
A termination that is completed this way can be canceled by a court later if
the court finds that all of the requirements listed above were not met. Either
party can ask for a revocation of the termination within the six-month period
after the notice of termination is filed, using a separate form called Revocation
of Termination of Domestic Partnership. Usually, you would seek a revocation
of the termination if you decided to get back together, or if one of you decided
that you wanted a court to decide how to divide your assets.