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Divorce, Custody & Family Law

Domestic Partner Law

What does it mean to register as domestic partners in California?
California has created a domestic partnership system so that same-sex couples can receive legal protections for their relationships similar to those that opposite-sex couples receive when they marry. In fact, Registered Domestic Partners now are supposed* to have the same rights as those given and imposed upon spouses. Click to read law.

*I say supposed, because quite frankly, we are not sure what the legislature or the courts are going to do with this new law. Also in light of the actions being taken in Congress and by the President related to marriages, it leaves this new legislation on very unsure footing. However, it is currently the law and must be treated as though it is enforceable.

What legal protections do we get if we register as domestic partners now?
Under current California law, couples who register as domestic partners have:
• the right to receive a portion of your partner’s property if he or she dies without a will;
• the right to use employee sick leave to care for a sick partner or partner’s child;
• the right to hospital visitation;
• the right to make medical decisions if your partner becomes incapacitated;
• the right to sue for wrongful death of your partner;
• the right to use stepparent adoption procedures to adopt a partner’s child; and
• the right to receive unemployment benefits if forced to relocate because of a partner’s job.

As of January 2005 the law changed:
With some important exceptions, domestic partnerships are much like marriage. Like married couples, domestic partners will become financially responsible for each other -- both during the relationship and possibly after it ends. As domestic partners you will be responsible for each other's debts acquired during the domestic partnership. If your partner takes out a loan for a new car and fails to pay, the bank could come after you. If you decide to split up, a court would treat the breakup like a divorce and could order you to pay financial support to your partner (or the other way around).

California's community property system will also apply to domestic partnerships. Your partner would be entitled to a half interest in any community property purchased after you become partners. If you break up, all the community property will be divided equally between you and your partner. Of course, this also means that you gain the right to use the court system to help you divide your assets.

Additional benefits will include:
• access to housing for families, students, or senior citizens;
• rent control protections;
• treatment as spouse under worker’s compensation and public assistance; and
• the right not to have to testify against your partner in a legal proceeding.

How will the law affect parenting rights?
If one partner gives birth after getting a domestic partnership, California will treat the other partner as a parent to the child. If either partner has a child prior to entering into a domestic partnership or adopts individually, California will allow the other partner to adopt just as it would a stepparent. If you have a child during the partnership or both adopt a child and later decide to split up, the California courts will determine custody and visitation. Both parents will be responsible for support.

It is important to be aware that in many states, unlike with a child of a marriage, unless the second parent has adopted the child, they will not recognize their rights to parent that child. Just as with married couples, domestic partners never take on parental rights to their partner's children from prior relationships.

How will domestic partnership differ from marriage?
While the new law takes a giant step toward creating equality for same-sex couples, it does not give same-sex couples all the rights and responsibilities of marriage.

The new law does not give same-sex couples any of the more than 1000 rights and benefits that the federal government gives to married couples, including:
• the right to sponsor a partner for immigration purposes;
• the right to family-related Social Security benefits;
• the right to federal income and estate tax breaks; and
• the right to purchase continued health coverage for a partner after the loss of a job. (COBRA)
Right now, the federal government will not let any state extend these federal benefits to same-sex couples, no matter what the relationship is called.

Even under California law, same-sex couples will not be completely equal once the new law goes into effect. Domestic Partners will not be able to file joint state income taxes and state employees will not be entitled to the same benefits under the state's long-term care benefits package. (This could be an advantage. See below.)

In addition, if you enter into a California domestic partnership, many of the protections will not exist if and when you are outside California. For instance, if you or your partner are injured in another state, you may not be allowed hospital visitation or the right to make emergency medical decisions on behalf of your partner.

Who is eligible to register as domestic partners?
In order to register as domestic partners:
• You must be members of the same sex. (Opposite-sex couples over the age of 62 are eligible under certain circumstances.)
• You must share the same residence.
• You must agree to be responsible for each other’s basic living expenses.
• Neither party can be married or in another domestic partnership.
• You can’t be related in a way that would prevent you from being married under state law.
• Both of you must be over 18.

How do we enter into a domestic partnership?
Getting a domestic partnership is simple. All you need to do is fill out a form which will require the signature of both parties, have it notarized and either mail it to the Secretary of State's office in Sacramento or take it in person to one of the Secretary of State's offices in San Diego, Los Angeles, Fresno, San Francisco or Sacramento. You'll need to include a $10 filing fee. You can download a copy of the form in PDF format at this link. The addresses of the Secretary of State offices are at this link. For additional information about domestic partners and the registry you may visit this site.

Do we need to be Californians to register as domestic partners?
No. You and your partner must live at the same address, but you don’t have to live in California.

Our city has a domestic partnership program. Do we need to register with the state if we’ve already registered with the city?
Yes. To be sure you receive all the benefits of the domestic partnership, you’ll need to register with the state.

Will our domestic partnership be valid outside of California?
Yes. Even if you don't live in California, you and your partner will be domestic partners.

But the more difficult question is whether federal and other state governments and private businesses will respect your domestic partnership. Businesses that already recognize same-sex couples (through domestic partnerships or similar systems) almost certainly will. It's hard to say what will happen with businesses that don't recognize same-sex couples yet. Some probably haven't been asked and may be willing. (Click here to find out how to approach your employer.) Some will doubtless be opposed and will refuse.

Vermont, which has civil unions for same-sex couples, will likely treat your domestic partnership as a civil union. Massachusetts, which is expected to allow same-sex couples to marry soon, will likely treat your domestic partnership as it does a marriage. As stated above the federal government has a law that says it will not recognize same-sex relationships. Many states will almost certainly refuse to recognize domestic partnerships from California, at least at first. The bottom line is that this issue is headed for the courts and will take time to resolve.

Are there any advantages to California domestic partnership over a Vermont civil union or marriage from Canada or Massachusetts?
Yes. California makes it possible for those who don't live in the state to end the domestic partnership. The main drawback of getting a civil union in Vermont or married in Canada or Massachusetts is that it's difficult for nonresidents to end their relationships because Vermont, Canada and Massachusetts each have one-year residency requirements for divorce. The new California law solves this problem by saying that all domestic partners agree that the California courts will have the right to end the relationship, divide joint property and determine visitation and custody of any children. (See the question below for more details.)

If we decide to split up, how do we get out of the domestic partnership?
You must file for a dissolution of your domestic partnership. This procedure is in essence exactly the same as a dissolution (divorce) for a marriage.

Could I be required to support my ex if we break up?
Yes! However, when the new law goes into effect your partnership will be treated the same as a marriage when it ends. That means that you (or your partner) could be required to provide support. California community property laws will also apply.(See the Divorce, Custody Issues and Information)

Can we still end a domestic partnership if we don’t live in California?
Yes. When you register in California, you agree to let the California courts end your domestic partnership, divide your assets and made decisions regarding child custody and visitation just as they do in divorce proceedings.

If we don’t live in California, could I still be required to pay support to my ex?
Maybe. Since you are consenting to have your relationship dissolved by the California courts, a California court could order you to pay support. However, it's possible that another state court would not follow the order of the California court.

I got a civil union from Vermont with my ex-partner, but we never ended it. Can I now get a domestic partnership with my new partner?
No. Until your civil union is dissolved you cannot get another domestic partnership. California will not let you get a domestic partnership if you are currently married or in another domestic partnership. California would treat the Vermont civil union the same as a domestic partnership, which would bar you from entering into another domestic partnership before ending the earlier one. You could however dissolve your Vermont civil union, in California and then register with your new domestic partner.

What if I got married in Canada or Massachusetts, but couldn’t get divorced. Can I get a domestic partnership with my new partner?
No. While the language of the law it less clear, the state clearly only intends for those who are not otherwise legally bound in another relationship to be eligible for domestic partnership. Like Vermont, both Canada and Massachusetts have a one-year residency requirement for divorce, which makes it difficult for nonresident same-sex couples to get divorced.

Can I dissolve my marriage, civil union or domestic partnership from another state in California?
Yes. California recognizes civil unions from other jurisdictions or domestic partnerships as domestic partnerships or equivalent in California and you may dissolve those unions here. You would have to meet the California residency requirements (the state for six months and the county for three months) if the union was formed somewhere other than in California. If it was formed in California you do not have to meet the residency requirements.

We have already registered as domestic partners in California. Will we need to register again to take advantage of the new law?
No. You will automatically receive the additional benefits and responsibilities under the new law. If you are not comfortable taking on these additional responsibilities, you should terminate your domestic partnership before the new law goes into effect in January 2005.

We have a civil union from Vermont but plan to move to California. Will we need to register as domestic partners?
No. California will recognize your civil union the same as if you registered as a domestic partner. You will receive all the benefits and responsibilities that go with California domestic partnership.

We got married in Canada. Do we need to register as domestic partners too?
Probably not. While it is not spelled out as clearly under the California law, the state clearly intends to extend domestic partnership benefits to couples who have sought legal recognition for their relationship.

Since some other states have same-sex marriage, should I wait to get married in one of those states?
Currently, according to Wikipedia,same-sex marriage has been legalized in six of the 50 states: In Massachusetts, Connecticut, and Iowa, marriages for same sex couples are legal and currently performed. In Vermont, same-sex marriages will begin on September 1, 2009. In Maine, same-sex marriages will begin on or around September 14, 2009, pending a people's veto. A vote on the issue is expected on the ballot for November. In New Hampshire, same-sex marriages will begin on January 1, 2010. In California, same-sex marriages were performed between June 16, 2008 and November 4, 2008. The marriages that were performed during this period are still recognized. In New York and Washington, D.C., same-sex marriages from other states or foreign countries are recognized but not performed.

Being able to say you're married is a lot different from saying you have a domestic partnership. However, for those who don't live in Massachusetts, getting married there may be impossible. There is an old law on the books that, according to the governor of Massachusetts, means you can't marry in Massachusetts if you wouldn't be allowed to do so in your home state, so it may well be that couples who don't live in Massachusetts won't be issued marriage licenses there. Also, like Vermont, Massachusetts has a one-year residency requirement to obtain a divorce if you decide to break up, making it virtually impossible for those who live outside of Massachusetts to get divorced. Unfortunately, Canada also has a one-year residency requirement for divorce. With a domestic partnership from California, you won't have these problems because regardless of where you live, the state will allow you to enter into a domestic partnership, and once you do, you have agreed that the California courts can dissolve your domestic partnership.

If you do get married in Massachusetts and move to California, it is likely that California would treat your marriage as it does domestic partnerships. See question above.

If we register as domestic partners can I sponsor my partner for immigration purposes?
No. The federal government will not recognize your California domestic partnership. While this policy may be challenged in court, you could be putting your non-national partner at risk of deportation by attempting to sponsor him or her until the courts have struck this policy down or Congress has repealed it.

If we get a domestic partnership, will it be easier for my partner and me to adopt a child together?
Yes. Under the current law, generally one partner adopts a child first and then the other partner has to go to court and ask for second parent adoption. When the new law goes into effect, couples will be able to adopt jointly, eliminating the expense and inconvenience of having to go through two legal proceedings to adopt one child.

If we get a domestic partnership, will that mean that my spouse automatically becomes the legal guardian of my children?
No. Even if you were to get married to a person of the opposite sex in the U.S., your spouse would not become legal guardian of your children until you get a "step-parent" adoption.

If we get a California domestic partnership, can we submit a joint tax return?
Yes and no. Yes, you may submit a joint California return or you may file separately. You cannot submit a joint federal return.


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