B. 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.

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. And a recent court opinion held that registration with a city, coupled with a good faith belief that the registration included all the rights of state-registered domestic partners, does not confer 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).
• 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 most 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, you will use a California court to do the legal paperwork involved in ending your relationship and to decide how your property will be divided if you and your partner can't reach your own agreement. If you move out of state and then break up and your new state won't allow you to 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.

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.

Rights and Responsibilities of California Registered Domestic Partners

Domestic partnership in California now carries with it a wide range of rights and responsibilities. Here are some of the most important provisions of the new law:

• 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 were 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 new 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.
• Domestic partners have the same privilege as spouses to refuse to testify against each other in court.
• 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 the 2007 tax year, registered domestic partners must use the same filing status as married couples. For their 2007 tax returns, most registered domestic partners will use either married filing jointly or married filing separate filing status (applying the same rules applicable to spouses).

Registered domestic partners also continue to have the rights granted under earlier versions of the law, including 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 other benefit for state income tax purposes.

Under a related law, all types of insurers in California -- health, life, disability, automobile, etc. -- must provide identical coverage to domestic partners and heterosexual 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.

Pre- and Post-Partnership Agreements

The legal responsibilities created by the new domestic partner law are not for everyone. Some couples may want to enter into written agreements defining their financial relationship, just as couples planning to marry do when they make prenuptial contracts. These agreements allow couples to set out their specific wishes about how they will share property and income, and how they will divide assets and debts if the relationship ends.

Making a prepartnership agreement isn't as simple as just sitting down and writing down your agreements, though. There are special rules that apply to prenuptial agreements, and the same rules apply to same-sex couples who want to opt out of some or all of the marital laws. For example, each party must disclose all of his or her assets to the other party. And although it's not technically required, it's strongly recommended that each partner have his or her own attorney during the process of preparing a prepartnership agreement.

Also, although you can use a prepartnership agreement to divide property and money, and even define support obligations toward each other, you can't make agreements in advance about child support, and you can't make an agreement that releases either partner from the obligation to pay support for a child to whom he or she is legally related.

You can get a head start on your prepartnership agreement. You and your partner can sit down together and think about what you would want in an agreement, and even do a first draft of the agreement yourselves, before taking it to separate attorneys for review and finalization. Check out two Nolo products that can help you do this: Prenuptial Agreements: How to Write a Fair & Lasting Contract, a book by Katherine E. Stoner and Shae Irving, and Prenups for Partners: Essential Agreements for California Domestic Partners, an eGuide by Katherine E. Stoner. Both the book and the eGuide are available at www.nolo.com, and are intended to be used together. These resources will help you figure out whether you need an agreement, take you through the steps of deciding what you might want in it, and help you figure out how to find and work with lawyers.

If you are already registered but are concerned that you might not want all of the provisions of the new law to apply to you, you can try preparing a post-partnership agreement. However, be particularly careful to find an attorney who is knowledgeable in this area. Post-nuptial agreements are strongly disfavored by courts, and have even stricter rules than prepartnership agreements.

Ending a California Domestic Partnership

The rules for terminating a domestic partnership have changed dramatically. Before January 1, 2005, 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 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 co-parenting.

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 (if they don't recognize its existence, they won't give you a piece of paper saying it's terminated). However, if you have children this issue might be complicated by special laws about custody cases and where they can be heard. You'll probably want to talk to a lawyer if you're registered California domestic partners living in another state.

You'll need more information about dealing with assets and debts at the end of a relationship. Take a look at Nolo's Essential Guide to Divorce, by Emily Doskow, and Divorce & Money, by Violet Woodhouse with Dale Fetherling (Nolo), for detailed information about all aspects of divorce. The California Judicial Council website also has a great deal of information and advice in its self-help section, at www.courtinfo.ca.gov.

Next: C. The Vermont Civil Union Law

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