Domestic Partnership Act of 2003

Effective January 1, 2005, adults who are not married are entitled to most of the legal benefits that are afforded married couples. This is the result of the enactment of the Domestic Partnership Act of 2003 by the California Legislature, which can be found in the California Family Code, commencing at section 297.

Legislative Intent

As is often the case with California legislation, certain sections of the Act set forth the legislative intention behind the legislation. However, these portions of the Act are uncodified and do not appear in the Family Code. The first section of the Act describes its purposes as: (1) To assure that elderly and homosexual citizens are included in the California Constitution’s guarantee of inalienable rights, liberty, and equality, and (2) to protect elderly and gay Californians from the economic and social consequences of abandonment, separation, the death of loved ones, and other life crises.

The overall purpose of the act is to insure that domestic partners are not treated differently from married couples under California law. To achieve this goal, the act enumerates specific rights that are to be extended to domestic partners.

Recognizing that it could not possibly address all potentially affected rights, Section 15 of the Act mandates that it is to be ". . .construed liberally in order to secure to eligible couples who register as domestic partners the full range of legal rights, protections and benefits, as well as all of the responsibilities, obligations, and duties to each other, to their children, to third parties and to the state, as the laws of California extend to and impose upon spouses."

Definition and Creation

California Family Code section 297(a) defines domestic partners as "two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring." A domestic partnership is created by the filing of a "Declaration of Domestic Partnership" with the Secretary of State.

Requirements

At the time of the filing of that document the persons must comply with all of the following requirements:

• Common Residence. They must share a common residence. However, it is not necessary for both partners to be on the lease or title in order for them to be deemed to be sharing a common residence.
• No Other Relationships. Neither person can be married to another person or a member of another domestic partnership.
• Not Related. The persons cannot be related to each other in a manner that would otherwise prohibit them from being married in California.
• Not Minors. Both persons must be at least 18 years old.
• 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.
• Legally Competent. Both partners must be legally capable of consenting to the establishment of a domestic partnership.
• 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.

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 an 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 as follows:

"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."

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.

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.

Termination of Domestic Partnerships

The termination of a domestic partnership is treated in the same manner as the termination of a marriage. A termination proceedings is commenced by the filing of 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 other respects, a domestic parternship termination case is filed and processed in the same manner as a marital case.

Procedure

Domestic partnerships are terminated in one of two methods, depending upon what is involved in the partnership. A domestic partnership can be terminated by simply filing a Notice of Termination of Domestic Partnership if:

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.

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)

Date of Registration Defines Community 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 workplace benefits that heretofore have been reserved to spouses. Those benefits include:

• Medical insurance
• Public pension plans, including survivor benefits
• Life insurance
• Various employment benefits, such as 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, register 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 Plans

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.

Useful Links

The office of the Secretary of State of California has established a website that provides a wealth of information about Domestic Partnerships. It can be found at http://www.ss.ca.gov/dpregistry/.

The following are links to the statues and forms referenced in this article:

Domestic Partnership Act of 2003: http://caselaw.lp.findlaw.com/cacodes/fam/297-297.5.html

Registration form: http://www.ss.ca.gov/dpregistry/forms/sf-dp1.pdf

Cal-COBRA: http://caselaw.lp.findlaw.com/cacodes/hsc/1366.20-1366.29.html

Defense of Marriage Act: http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=28&sec=1738

Public Employees' Long-Term Care Act: http://caselaw.lp.findlaw.com/cacodes/gov/21660%2D21664.html

Judicial Council Petition (Family): http://www.courtinfo.ca.gov/forms/fillable/fl100.pdf (Note: the revised form with a check box for domestic partnerships had not been published as of this posting.)