 DOMESTIC PARTNER CASES:
Domestic Partner Cases:
As of January 1, 2005,
many gay and lesbian adults, who are not married are entitled to enjoy most of
the legal benefits that married couples are afforded. This is the result of the
legislature's enactment of the
Domestic
Partnership Act of 2003. Details of the statute can be found commencing at
Section
§297 of the
California Family Code. This section also
applies to older Californians who qualify under Title II of the Social Security
Act as defined in 42 U.S.C. Section 402(a) for old-age insurance benefits or
Title XVI of the Social Security Act as defined in 42 U.S.C. Section 1381 for
aged individuals.
Without getting into the political ramifications of this law, we present the
information for the benefit of those to whom the law could apply. We want
everyone to know that we do not
discriminate against gay or straight people. We are here to provide legal
services to everyone. If you are someone who has
questions or desire services under this law, we are ready, willing and able to
provide you with those services. With our office you can always be sure of
discretion, confidentiality and professionalism in the handling of your case.
News flash, the Los Angeles Times, on April 5, 2005, reports that an appellate
panel of the 3rd. District of the Court of Appeals has ruled that this this
provision is constitutional and doesn't violate Proposition 22. As you may
remember, the voters approved Proposition 22 which banned marriage for gays and
lesbians. The panel ruled that "The words of Proposition 22
and also it's ballot pamphlet materials do not express an intent to repeal our
state's then-existing domestic partners laws or to limit the legislature
authority to enact other legislation regarding such unions."
The other point of view from conservatives and a Christian legal group position
is that "When the voters went to the poles in 2000 and
passed Proposition 22, they did not intend to preserve only the label of
marriage, they intended to preserve the essence of marriage." They intend to mount
a legal challenge to the Appellate Court's interpretation of the Statute. I
would not be surprised if this view prevails. While California has a very
liberal judiciary and legislative branch, there is a definite groundswell which
favors limitations on such unions.
This question will probably end up with both the California and United States
Supreme Court reviewing the statute. It may get by the California Supreme
Court but I doubt it will survive Federal scrutiny. The Court will probably use
the comity clause, the equal protection clause or even the Commerce clause to
strike down the law. It will be interesting to see how this plays out, so stay
tuned for more information as it becomes available.
Requirements for Registration:
Obviously you must comply with
certain requirements to register as Domestic Partners in California. The
following are the minimum requirements for registration as provided in Family
Code Section §
297:
A. Domestic partners are two adults who have chosen to share one another's
lives in an intimate and committed relationship of mutual caring.
B. A
domestic partnership shall be established in California when all of the
following requirements are met:
1. Both persons have a common residence.
2. Both persons agree to be jointly responsible for each other's basic living
expenses incurred during the domestic partnership.
3. Neither person is married or a member of another domestic partnership.
4. The two persons are not related by blood in a way that would prevent them
from being married to each other in this state.
5. Both persons are at least 18 years of age.
6. Either of the following:
a. Both persons are members of the same sex.
b. One
or both of the persons meet the eligibility criteria under Title II of the
Social Security Act as defined in 42 U.S.C. Section 402(a) for old-age insurance
benefits or Title XVI of the Social Security Act as defined in 42 U.S.C. Section
1381 for aged individuals. Notwithstanding any other provision of this
section, persons of opposite sexes may not constitute a domestic partnership
unless one or both of the persons are over the age of 62.
7. Both persons are capable of consenting to the domestic partnership.
8. Neither person has previously filed a Declaration of
Domestic Partnership pursuant to this division that has not been
terminated
9. Both file a Declaration of Domestic Partnership with the Secretary of State
pursuant to this division.
c.
"Have a common residence" means that both domestic partners share the same
residence. It is not necessary that the legal right to possess the common
residence be in both of their names. Two people have a common residence
even if one or both have additional residences. Domestic partners do not cease
to have a common residence if one leaves the common residence but intends
to return. Does this even make any sense?
d.
"Basic living expenses" means shelter, utilities, and all other costs directly
related to the maintenance of the common household of the common residence of
the domestic partners. It also means any other cost, such as medical care,
if some or all of the cost is paid as a benefit because a person is another
person's domestic partner. Not sure that this section is very clear either.
e.
"Joint responsibility" means that each partner agrees to provide for the other
partner's basic living expenses if the partner is unable to provide for herself
or himself. Persons to whom these expenses are owed may enforce this
responsibility if, in extending credit or providing goods or services, they
relied on the existence of the domestic partnership and the agreement of both
partners to be jointly responsible for those specific expenses. This means that
seniors and gays can have the same fun in Court that younger straight couples
have and the same expenses.
f. "No Other Relationships:" Neither person can be
married to a person orf another domestic partnership.
g. "Not Related:"
The persons cannot be related to each
other in a manner that would otherwise prohibit them from being married in
California. This means that if you couldn't marry your brother, sister or
first cousin, you cannot enter into a Domestic Partnership either.
h. "No Minors:" Both persons must be at least 18 years
old. I would hope that only adults would get married or enter into Domestic
Partnerships.
i.
"Same Sex or Elderly:" The persons must be of the
same sex, unless they are both eligible to receive Social Security Benefits.
(FC§297(b)), in which case they can be of the opposite sex. This is fairly
straight forward.
J. "Legally Competent:" Both partners must be legally
capable of consenting to the establishment of a domestic partnership. This means
that you are sufficiently sane that you know what you are doing. Someone who is
under a Court Ordered Conservatorship would not be able to marry or enter into a
Domestic Partnership, unless approved by the Court.
k. "Consent to Jurisdiction of the Superior Court:" Both partners
must consent to the jurisdiction of the superior court to enter a judgment of
dissolution, nullity, legal separation, or any other proceeding related to the
relationship, even if one or both of the partners no longer resides in
California.
This is where we lawyers get you. If you entered into a Domestic Partnership and
moved to Ohio, you have to come back to dissolve the partnership. Why? Because
other states may not recognize the partnership and may not have a procedure to
dissolve the partnership.
Current Domestic Partners:
Individuals who registered as domestic partners before the effective date of
the Act are automatically deemed registered under the Act. However, if formerly
registered domestic partners took advantage of and opt-out window that expired
on January 1, 2005, they are no longer registered partners.
General Rights and Duties:
As discussed above, the essence of the act is that registered domestic
partners are to enjoy all of the rights and responsibilities that are accorded
to married persons during their lives and thereafter. This is clearly reflected
in the language found in Family Code §297.5 (a), which provides in pertinent
part that:
"Registered domestic partners shall have the same rights, protections, and
benefits, and shall be subject to the same responsibilities, obligations, and
duties under law, whether they derive from statutes, administrative regulations,
court rules, government policies, common law, or any other provisions or sources
of law, as are granted to and imposed upon spouses."
Whether or not this survives scrutiny by the Appellate or Supreme Courts remain
to be seen. as mentioned above, the trial courts are already weighing in on this
section.
Children:
The Act attempts to assure that children of the parties
will not be stigmatized by reason of their parent’s participation in a domestic
partnership. It does so in Family Code §297.5(d) by providing that the rights
and duties of domestic partners with respect to a child of either of them is to
be the same as those of spouses, former spouses and surviving spouses. However
this doesn't mean that the children may not have a tough time at school or from
prejudiced bullies after school.
By including this provision in the act, the Legislature certainly had Family
Code §§ 3101 in mind. That statute permits a court to award visitation rights to
a stepparent if it is shown that such visitation is in the child’s best
interests. Thus, upon the termination of a domestic partnership the former
partner would be entitled to request visitation with the child of his or her
former partner. Whether a visitation request is granted will be determined by
the particular facts of the case. Oh Joy, gays can enjoy having custody
fights too. Isn't that nice?
Termination of Domestic Partnerships:
A. Domestic partnerships are terminated in one of two
methods, depending upon what is involved in the partnership.
1. FILING OF SIMPLE NOTICE:
1. There are no minor
children of the relationship.
2. The domestic
relationship did not last longer than five years.
3. Neither partner has
an ownership interest in any real estate.
4. If either or both
partners are leasing their premises, the lease cannot have an option to purchase
and the lease must have a term of less than one year.
5. There are no unpaid
obligations in excess of $4,000 incurred by either or both partners.
6. The total net fair
market value of the partners’ jointly held assets, is less than $25,000, and
neither partner has separate assets with an aggregate net value of $25,000
7. The partners have
entered into an agreement dividing their assets.
8. Neither
partner is requesting spousal support from the other.
2. FILING OF DISSOLUTION OF DOMESTIC PARTNERSHIP:
A. If the partnership does not qualify for the filing of a
Notice of Termination, an action for the dissolution of the domestic partnership
must be filed with the Superior Court. This is done by filing the same Petition
(Family Law) that is filed when a spouse wishes to end a marriage. Moreover, a
domestic partner can elect a dissolution of the partnership, a legal separation
or a nullity. In all respects, a domestic partnership termination case is filed
and processed in the same manner as a marital case. Property Rights The
community property laws of California provide law any assets and income that are
acquired by a married person is presumptively community property. However,
assets acquired by domestic partners while they are in their relationship are
not treated as community property when the relationship is terminated. Instead,
Family Code §299.5 provides that any assets jointly acquired by the partners are
to be divided “. . . in proportion of interest assigned to each partner at the
time the property or interest was acquired unless otherwise expressly agreed in
writing by both parties.”
Death of a Partner:
Under the law that had been in effect
since July 1, 2003, if a domestic partner died without a will, trust, or other
estate plan, the surviving domestic partner would inherit the deceased partner's
separate property in the same manner as a surviving spouse. Under the Act, the
surviving domestic partner would inherit a third, a half, or all of the deceased
partner's separate property, depending on whether the deceased domestic partner
has surviving children or other relatives. If a registered domestic partner
dies, the surviving partner is to have the same rights as a spouse, regardless
of whether they originate from "statutes, administrative regulations, court
rules, government policies, common law or any other provisions or source of law.
. ." Family Code §297.5(c)
No Joint Returns:
A. limitation
on the rights of domestic partners is found in the act’s provision for the state
income tax filing status of partners. Under the act domestic partners are to use
the same filing status as is used on their federal income tax returns or that
would have been used had they filed federal income tax returns. Because domestic
partners are not permitted to file joint income federal income tax returns, this
appears to create a prohibition against the filing of joint state tax returns.
Moreover, earnings of domestic partners cannot be treated as community property
for state income tax purposes. Family Code §297.5(g)
Non-Discrimination:
State agencies are prohibited from discriminating
against domestic partners or a person who is in a domestic partnership. The fact
that the domestic partner is not actually a spouse cannot be the basis for any
discrimination by the state. Family Code §297.5(h) The Only question I have is -
Isn't the fact that they cannot file a joint State Return a form of
Discrimination? Just asking.
Date of Registration Defines Property and Spousal Support Rights:
The Family Code defines community property as anything
acquired by a married person between the date of marriage and the date of
separation, except by gift, devise or bequest. With regard to spousal support,
the code further provides that where more than ten years passed between the date
of marriage and the date of separation, there is a presumption that any spousal
support that is ordered must be for an indefinite period of time. To make those
provisions applicable to domestic partnerships, the Act provides that where more
than ten years passed between the date of marriage and the date of separation,
there is a presumption that any spousal support that is ordered must be for an
indefinite period of time. To make those provisions applicable to domestic
partnerships, the Act provides that any reference to the date of a marriage is
to refer to the date of registration of a domestic partnership with the state.
Specific Impacts of The Act:
The broad reach of the Domestic Partnership Act of 2003
can be expected to have implications throughout the state.
Employment:
Because the Act insures that registered domestic partners are
to have the same rights, protections, and benefits as spouses, it can be
expected that registered domestic partners will be afforded work place various
work-place benefits that heretofore have been reserved to spouses. Those
benefits include medical insurance, public pension plans, life insurance,
membership discounts, travel discounts, and the payment of relocation expenses.
Medical Insurance Following Termination of a Domestic
Partnership:
The State of California has created
"Cal-COBRA" benefits which are similar to the benefits provided under the
federal COBRA legislation. (See below) Cal-COBRA was designed to provide health
insurance coverage to employees, and their dependents, of employers with 2 to 19
eligible employees who are not currently offered continuation coverage under the
federal COBRA legislation. Upon a termination of a domestic partnership, the
non-employed former partner will be assured of obtaining continued medical
insurance coverage, assuming all other Cal-COBRA requirements are met.
Limitations:
Domestic partnerships are not recognized by the Federal Government. This policy
of non-recognition is found in the federal
Defense of Marriage Act, which provides that ". . . no State. . . shall be
required to give effect to any public act, record, or judicial proceeding of any
other State. . . regarding a same-sex relationship between persons that is
treated as a "marriage" under the laws of the other State. . . or to a right or
claim arising from such relationship." Thus, registered domestic partners who
terminate their relationships do not enjoy certain benefits and protections that
are available to former spouses.
Tax Deductibility of Spousal Support:
Under the Act, a judge can order one former domestic partner
to pay spousal support to the other partner. However, unlike divorcing couples,
spousal support payments made by a former domestic partner are not tax
deductible in either federal or state income tax returns.
Capital Gains Taxes:
Internal Revenue Code Section 1041 provides that capital
gains taxes cannot be imposed on a division of assets pursuant to a dissolution
of marriage. However, because domestic partnerships are not recognized or
sanctioned by the Federal Government, any property divisions in a termination of
domestic partnership are not exempt from capital gains taxes.
Division of Pensions:
In a dissolution of marriage case, private pension plans are
divided according to the terms of a Qualified Domestic Relations Order, pursuant
to federal law. A Qualified Domestic Relations Order specifies how a pension
plan is to be divided between former spouses. A pension plan that is served with
a Qualified Domestic Relations Order is required to comply with its terms,
including direct payment to the non-employed spouse. However, registered
domestic partners are not able to obtain Qualified Domestic Relations Orders.
When a domestic partnership is terminated an one spouse has a pension, the
non-employed spouse will have to seek collection of his or her share of the
pension directly from the former partner.
COBRA Benefits:
The federal law guarantees that surviving and former
spouses will have the right to maintain medical coverage following the death of
the employed spouse or the termination of the marriage. These are commonly
referred to as "COBRA" benefits. Because of the Act specifies that its terms do
not affect any right under federal law, a former register domestic partner
cannot obtain the continuation and conversion medical insurance benefits that
are available to former spouses. However, and as discussed above, California has
enacted legislation that provides COBRA-like benefits to former spouses of state
employees.
Public Employees' Long-term Care Plan:
Even though the Act specifically prohibits discrimination of individuals who are
in domestic partnerships, it does not modify the rules defining eligibility for
long-term care plans under the
Public
Employees' Long-Term Care Act. That act provides insurance coverage for
extended home, community and nursing home care for eligible employees of the
State of California.
Some Thoughts on This Subject:
No matter whether or not you agree with the concept
underlying this section or not, I would caution anyone who is contemplating
registering as a Domestic Partnership to be extremely careful. I think it is
clear that this act is not marriage, despite what the religious right may think.
As such you simply do not have the same protections that a married couple has.
While it is not a perfect solution, I would recommend that you consider a
"pre-nuptial" type of agreement. This would not give you everything that a
married couple would have, but it would give you as much protection as you are
ever going to get. The agreement should set forth everything that the two of you
agree to regarding living together. It should also cover what happens if you
decide to break-up or become incapacitated.
Love is blind, but you simply cannot afford to be blind. You need to consider
what you will do if the law is struck down and you lose the protection that it
provides. You need to consider the financial aspects of your relationship. Are
the two of you of equal earning capacity or is one partner the breadwinner and
the other partner the one who stays at home. While it may sound terribly
romantic to have a partner at home or to be the partner at home, you have to
consider what would happen if the supporting partner died or became
incapacitated. Do one or both have children, family or a prior partner? Do they
have obligations under the prior relationships. Would you be better off to
merely live together and keep your finances separate. These questions need to be
answered before you decide to register as a Domestic Partnership.
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