A Legal Guide for Lesbian & Gay Couples
A Legal Guide for Lesbian & Gay Couples
Protect and exercise your rights
Denis Clifford, Attorney; Emily Doskow, Attorney & Mediator; and Frederick Hertz, Attorney
June 2014, 17th Edition
Protect your rights -- protect your relationship!
Laws affecting LGBT couples are changing rapidly, and while it's an exciting time for all gay and lesbian partners, keeping up with the myriad ways the shifting legal landscape touches your family life can be daunting. Now more than ever, it's important that you take the proper legal steps to define and protect your relationship in the eyes of the law. If you don't, you run the risk of being shut out of each other's lives -- and the lives of children you co-parent -- in times of medical, financial or personal crisis.
Fortunately, this practical guide is updated with the latest legal information and legislation that will help you and your same-sex partner protect and exercise your rights, and make sound decisions as a couple.
A Legal Guide for Lesbian & Gay Couples covers these important subjects, and many more:
- making practical decisions about living together
- planning for medical emergencies -- making medical decisions for one another and taking care of each other's finances when one partner is incapacitated
- domestic partner benefits and how to obtain them
- buying property together
- providing for each other upon death
- practical and legal aspects of having and raising children
- marriage laws for all 50 states
The 17th edition of A Legal Guide for Lesbian & Gay Couples is updated to provide the latest information on same-sex marriage, civil unions and domestic partnerships in the U.S., Canada and around the world, as well as all the recent developments in same-sex partnership law. Plus, create essential legal documents using the step-by-step instructions included.
For Legal Updates on LGBT Law, Click here
“Informative for any unmarried couple.” - San Francisco Chronicle
“The edge of the law ... will be much less fearful for those who have this book.” - Los Angeles Times
“Provides a legal roadmap for anyone looking for guidance towards protecting his or her family.” - Elizabeth Birch, Executive Director, Human Rights Campaign
- Renting Together Agreement
- Moving-In Agreement
- Agreement to Jointly Raise Our Child
- Parenting Agreement
- Nomination of Guardian for a Minor
- Donor Insemination Agreement
- Contract Regarding Child Support and Custody
- Temporary Guardianship Agreement
- Authorization to Consent to Medical, Surgical, Dental Examination or Treatment of a Minor
- Mediation-Arbitration Clause #1
- Mediation-Arbitration Clause #2
- Agreement to Keep Income and Accumulations
- Agreement to Combine Income and Accumulations
- Agreement for Joint Outright Purchase
- Agreement Regarding Jointly Owned Item Purchased Credit in One Partner's Name
- Contract for Long-Term Couples
- Living Together Agreement—Keeping Things
- Living Together Agreement—Sharing Most Property
- Agreement for Sharing Household Expenses
- Joint Project Agreement #2
- Agreement Allowing Alternating Time Off
- Agreement for Educational Support
- Agreement for Compensating a Homemaker
- Contract for Equal Ownership of Real Property
- Contract for Ownership of Real Property and Payments Split Unequally
- Promissory Note for Down Payment Money
- Contract When One Owner Does Not Live on the Premises #1
- Contract When One Owner Does Not Live on the Premises #2
- Contract for Sale of a Share of House
- Postseparation Agreement Regarding Housing
- Settlement Agreement
- Agreement Regarding Mediation and Arbitration
- Postseparation Parenting Agreement
Your LGBT Family Companion
- How We See Our Relationships
- How This Book Can Help
- Using the Forms in This Book
1. Defining Family: Basics of Marriage, Domestic Partnership, and More
- Defining Family
- Domestic Partnership
- Employee Benefits for Domestic Partners
- Marriage and Marriage-Like Relationships in the United States: An Overview
- Can You Get Married?
- Creating Marriage-Like Relationships by Contract
- Ending a Relationship
- Keeping Up With Legal Changes
2. Marriage and Marriage-Like Relationships
- Same-Sex Marriage in the Marriage Equality States
- Marriage Equivalent: California’s Domestic Partnership Law
- Other Marriage Equivalent Laws
- Pre- and Postpartnership Agreements
- Marriage Lite: Relationship Recognition in Wisconsin and Colorado
- Is Marriage (or Its Equivalent) Right for You?
3. Money, Insurance, Name Changes, and Immigration Issues
- Cash and Credit
- Name Changes
- Foreign Lovers: Visits and Immigration
4. Renting a Home Together
- If a Landlord Discriminates Against You
- Sharing a Rental
- Sharing One Partner's Rented Home
- Renter's Insurance
- Moving On
- Public Benefits and Living Together
5. I'm Mom, She's Mommy (or I'm Daddy, He's Papa)
- Legal Parents and the Second Parent Trap
- Having a Child
- Adopting a Child
- Foster Parenting
- Becoming a Guardian
- Agreements With Teenagers
6. Medical and Financial Matters: Delegating Authority
- Health Care Decisions
- Physician-Assisted Suicide
- Burial and Body Disposition
- Estate Planning Note
- Durable Power of Attorney for Finances
7. Looking Ahead: Estate Planning
- Death and Living Together Contracts
- A Sample Will
- Estate Planning Beyond a Will
8. Living Together Contracts for Lesbian and Gay Couples
- Living Together Contracts Are Legal
- When You Need a Living Together Contract
- What to Include in a Living Together Contract
- Sample Living Together Contracts
- Contracts for Jointly Acquired Items
- Modifying Your Agreement
- Beware the Tax Man!
9. Buying a Home Together (and Other Real Estate Ventures)
- Finding a House
- How Much House Can You Afford?
- Proceeding With Your Purchase
- Taking Title to Your New Home
- Contracts for Home Purchase and Ownership
10. Going Separate Ways: Issues at the End of a Relationship
- Breaking Up: An Overview
- The Separation Process: What to Do
- Getting to Yes: How to Work Toward Resolution
- Ideas for Solving Some Common Problems
- Breaking Up When There's No Legal Relationship
- Dissolving a Gay Marriage
- Dissolving a Straight Marriage
- Domestic Violence in Same-Sex Relationships
11. Help Beyond the Book
- Hiring a Lawyer
- Doing Your Own Legal Research
- Legal Organizations
Appendix: Using the Interactive Forms
- Editing RTFs
- List of Forms
Marriage and Marriage Equivalent Relationships
Same-Sex Marriage in the Marriage Equality States.................... 39
Requirements for a Marriage License....................................... 40
Rights and Responsibilities....................................................... 40
Ending a Legal Marriage........................................................... 41
Marriage Equivalent: California’s Domestic Partnership Law........ 44
Requirements for Registration.................................................. 44
Rights and Responsibilities of California Registered Domestic Partners 46
Ending a California Domestic Partnership................................ 48
Other Marriage Equivalent Laws................................................... 51
Requirements for a Civil Union or Domestic Partnership......... 52
Rights and Responsibilities of a Civil Union or Domestic Partnership 52
Ending a Domestic Partnership or Civil Union.......................... 53
The Status of “Outdated” Civil Unions...................................... 55
Pre- and Postpartnership Agreements.......................................... 55
Marriage Lite: Relationship Recognition in Wisconsin and Colorado 56
Colorado’s Reciprocal Beneficiaries Law................................. 57
Wisconsin’s Domestic Partnership Law.................................... 57
Is Marriage (or Its Equivalent) Right for You?............................... 58
Every year for centuries, heterosexual couples have married without giving much thought to the legal ramifications of their decision. Most likely, they assumed they would share finances, and often one partner supported the other financially. They often owned property together, and when one partner owned property before the marriage, they added the new spouse to the title after they married. They gave each other gifts, sometimes very expensive ones. Most typically, they had children and no one questioned either spouse’s legal relationship with those children. If they divorced, they correctly assumed the court system would accommodate their legal needs, and they were able to transfer property between themselves to settle the divorce without any concern about tax consequences.
As of 2014, when this edition of this book is being published, same-sex couples in nearly 20 states can sign up for marriage or its state law equivalent, several more states have marriage equality laws pending or under court review, and an estimated more than 100,000 couples now come under the umbrella of state marital rules. But unlike their straight friends and relatives, these couples cannot afford to enter into legal relationships without considering the financial and legal consequences.
While your state’s law may give you the same rights and responsibilities enjoyed by heterosexual married couples, the lack of recognition across state lines—and most crucially, the lingering discriminatory nonrecognition of state-registered partners by the federal government—is a distinction that makes all the difference. For example, let’s say that you and your partner live in Connecticut. You now have the right to legally marry, but it’s not clear exactly what that really means. If you do it, will you be responsible for each other’s debts? Will you have to share your income? Will you file joint tax returns? If you have children, will you both be legal parents? If you break up, who gets what, and who decides? Your partner is gung-ho about becoming legal partners, believing that it would demonstrate your commitment to each other, make a political statement about same-sex relationships, and make your lives better. You’re completely committed to the relationship, but you wonder about the details of making it legal—and you’re not sure it’s the best option for the two of you.
What should you do? First, review the material below to learn the basics about how your state law treats same-sex couples who enter into legal relationships, whether full marriage or a marriage equivalent, and whether your relationship will be honored by the federal government. Next, if you’re not prepared to sign up for the complete package of marital rules, talk to a lawyer about how the rules would apply to your particular circumstances. Find out whether a written agreement signed before your marriage or legal partnership would allow you to opt out of the elements that you don’t want, while allowing you the benefits that would work for your relationship. Talk with your partner about what you learn, and make an informed decision about what you want to do.
This chapter discusses the states with marriage or marriage equivalent relationships, beginning with the ones that allow same-sex couples to marry. The chapter also covers marriage-like relationships in other states, and briefly summarizes where things stand in some of the “in-between” and “marriage-lite” states.
Below are some basic principles you should keep in mind no matter where you live.
Having the same rights as married couples in your state now includes all federal rights, as long as you live in a marriage equality state. For some federal rights (such as federal tax benefits and immigration status), the federal government will recognize your same-sex marriage as valid, even if you live in a nonrecognition state. However, many federal agencies, such as the Social Security Administration, will not extend benefits to same-sex married couples that live in nonrecognition states. And, for the most part, federal agencies will not recognize a domestic partner registration or civil union as a marriage, which means these same-sex couples will not qualify for any of the 1,000-plus federal rights that go along with marriage.
For more about why federal marriage rights matter and which couples are treated as married under federal law, see www.freedomtomarry.org or www.marriageequality.org.
If you want to marry or register but don’t want all of your state’s marriage rules to apply to you, you may be able to enter into a prenuptial or prepartnership agreement—and you’ll need a lawyer’s help. Every state that recognizes same-sex relationships also permits prenuptial or preregistration agreements. You can use a preregistration (or premarital) agreement to define your financial relationship by stating what property is separate and what is shared and providing for a customized division of property and payment of support should you separate. Each state has its own rules about preregistration agreements, and it’s crucial that you see a lawyer before preparing an agreement—otherwise the agreement may not be enforceable.It’s especially tricky if you are getting married in one state, but live in a state that doesn’t recognize your marriage: In this situation, it’s definitely prudent to consult with a local family law attorney who practices law in the state where you reside.
If you want to learn more about preregistration agreements, see Prenuptial Agreements: How to Write a Fair & Lasting Contract, by Katherine E. Stoner and Shae Irving (Nolo).
Military servicemembers still face a few challenges. In 2011, the discriminatory “Don’t Ask, Don’t Tell” policy was repealed, and lesbians and gay men can now serve openly in the U.S. military. However, servicemembers continue to face discrimination. And, now that Section 3 of the Defense of Marriage Act (DOMA) has been invalidated, the military, as a branch of the federal government, is supposed to provide the same benefits—for example, health care—to the spouses of gay and lesbian servicemembers as they do to opposite-sex spouses. These include family housing, assistance with relocating a spouse, and various types of practical and social assistance offered by the military to servicemembers’ families. There have been some problems in the implementation of these new rules, but on the whole, the Department of Defense has been doing the right thing since Section 3 of DOMA has been tossed out.
Immigration benefits now extend to same-sex married couples, even if they live in nonrecognition states. However, there are remaining issues for some couples, and some of the related public benefits details raise red flags that may mean it’s better not to register or marry. If one partner is not a U.S. citizen and is either undocumented or here on a nonimmigrant visa, it’s crucial that you talk to a lawyer before you register or marry.
Parentage isn’t necessarily secure. In most marriage equality and marriage equivalent states, a child born into a marriage or registered domestic partnership or civil union is legally the child of both partners under state law. Both parents’ names can go on the birth certificate immediately, and the nonbiological or “second” parent has equal rights with the biological parent. Now that Section 3 of DOMA has been invalidated, the federal government should recognize the second parent with regard to Social Security, COBRA coverage, or other federal purposes. But not every state will recognize these parentage rights, so it’s still important that the second parent use a legal adoption procedure to ensure that the parent-child relationship is protected. There’s more about parentage in Chapter 5.
Use a court procedure to change your name. Although all states allow married people to change their names upon marriage without a court proceeding, there is still discrimination against same-sex couples when it comes to name changes in many states. Fortunately, the federal government now recognizes name changes that are done as part of a marriage license procedure. But, if you want to be sure that your name change is legal, use a court procedure.
Same-Sex Marriage in the Marriage Equality States
Marriage equality first came to Massachusetts when the Massachusetts Supreme Court ruled in November 2003 that the state’s ban on same-sex marriage violated the state constitution. The ruling took effect on May 27, 2004. In the ten years that the law in Massachusetts has been in effect, more than 25,000 same-sex couples have married. In the last few years, full marriage equality has also been extended to same-sex couples in California, Connecticut, Delaware, District of Columbia, Hawaii, Illinois (June 2014), Iowa, Maine, Maryland, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont and Washington—quite a dramatic change in the legal landscape. In addition, while the specifics for each state are slightly different, the general requirements and procedures for marriage are fairly standard. Keep your eyes open for further expansion of marriage rights, as courts and legislatures are doing the right thing in an increasing number of states each year. Marriages were briefly allowed in the ultraconservative state of Utah in December 2013, with a final decision on that state’s law expected later in 2014—possibly with a nationwide set of rules coming out of the United States Supreme Court.
Requirements for a Marriage License
To get a marriage license in any marriage equality state, you must be 18 or older, not married to anyone else, not related by blood to your intended spouse, and in a few remaining states, have taken a blood test showing that you do not have communicable syphilis. When Massachusetts first allowed same-sex marriage, you had to be a Massachusetts resident unless you lived in a state that would recognize your Massachusetts marriage—but this is no longer the rule. None of the other states have residency requirements either (nor does Canada, which legalized same-sex marriage some years ago). But don’t forget that in many of these states, there is a residency requirement to divorce—see below.
Rights and Responsibilities
Once married, same-sex couples who live in a marriage equality state have all the rights and responsibilities granted to all married couples in the state. And now, the federal government fully acknowledges same-sex marriages if you live in a recognition state. If you don’t live in a marriage equality state and you travel to get married, then depending on the precise law of your home state and the specific federal benefit at stake, your marriage may or may not be recognized. Your marriage is still valid, in the sense that you will be treated as married in any marriage equality state and will be treated as federally married for some purposes, but it probably won’t be recognized in the state where you live.
The ramifications to the emergence of full marriage equality in a growing number of states are enormous and will continue to affect couples nationally for many years. Undoubtedly, some couples will marry in their marriage equality home states, then move for business or personal reasons and attempt to enforce their marriages in their new home states. This raises the constitutional issues called “comity” and “full faith and credit.” The United States Constitution generally says that marriages in one state must be recognized by all other states. But in some instances, states are granted the right to disregard a marriage of another state based on so-called “public policy” concerns. Many states have passed their own DOMAs banning recognition of same-sex marriages from out of state, and a depressing number of states have passed constitutional amendments prohibiting them from recognizing same-sex relationships of any kind from other states.
Thus, unless you are living in a full marriage equality or marriage equivalent state that explicitly recognizes same-sex marriages, it may be years before your legal status is recognized where you actually live, and you may encounter a patchwork of uneven responses. In other words, one employer or state agency may treat you as married, while another views you as two single, unrelated adults. As unfair as this disparate treatment is, it is going to be our reality during this time of legal transition and social evolution.
Ending a Legal Marriage
Another important issue is how a couple married in a marriage equality state can end their relationship if they no longer live in that state (or ever lived there), or in another marriage equality state. The only way to end a marriage is through divorce, and because some states will not recognize a same-sex marriage, it may be difficult to get courts in those states to grant a divorce. (Texas and Oklahoma have refused to entertain divorce cases for same-sex couples. In Texas, the two men appealed and eventually were allowed to get their divorce, but in Oklahoma, the decision stands, so far.)
You may think you can just return or move to a marriage equality state to get a divorce, but it’s not that simple. Most states have residency requirements for divorce, meaning that before you can even file for divorce you must have lived in a state for a certain period of time, usually six months to a year. (A few states have no residency requirements to start a divorce action, but they have special rules that you should consult before filing.) And once you file for a court divorce, it typically takes at least six months, and probably longer, for a divorce to become final.
And it’s not just a question of having access to the court for a divorce. There is often the bigger quandary of whether you are treated as married when it comes to issues of parentage, money, and assets. In a divorce process, it may be in the financial or personal interest of one spouse to have the marriage go unrecognized, in order to avoid sharing assets or parentage with his or her now-despised partner. It’s an unfortunate truth that some same-sex partners will ask courts not to recognize their marriages for that reason.
Fortunately, a few state legislatures have wised up to this problem, and have passed laws that allow nonresidents to file for divorce even if they live elsewhere, but only if they married in one of those states and live in a state that won’t grant them a divorce. Having access to a “non-domicile” divorce could be critical. Being “wedlocked” to someone you no longer love can be a miserable experience, even worse than not being able to get married, so we recommend that if you live in a nonrecognition state, you should only get married in one of the jurisdictions that offer nondomicile divorce. At the moment, that list includes California, Minnesota, Delaware, and if you don’t have any children, Vermont. Canada now offers nondomicile divorces as well, but only under limited circumstances.
There are really no certain answers to many of these questions as yet—but see below for ways that you can keep up to date on what is happening in this quickly changing area of the law—and manage your personal lives in the meantime.
Don’t be a bigamist. If you are married or have registered for a marriage equivalent civil union or domestic partnership, check with a lawyer before trying to get married again anywhere else—to the same person or to someone else. If you have a marriage certificate, you are legally married and any marriage you enter into later will probably be considered invalid. If you have a marriage equivalent civil union or domestic partnership, you have a legal status that is equivalent to marriage and you may also be guilty of bigamy if you marry someone else while the other legal relationship is still intact. It’s unclear what the legal consequences might be of marrying the same person with whom you have the previous marriage, domestic partnership, or civil union. At best, it won’t matter. At worst, you could find yourself in a complicated fight if you and your 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.
Relationship Recognition in the Workplace
Marriage raises a whole set of issues for employment-related issues. Most pension and retirement benefits are governed by federal law, but employers sometimes have to look to state rules about benefits. Employers in marriage equality states must offer nonfederal benefits for all married couples, whether they are of the same or opposite sex.
Married couples living in recognition states now enjoy all the federal benefits of marriage, but there are still some conflicts between state marriage laws and the federal agencies when it comes to state-registered partnerships. And, it’s likely some employers’ refusal to provide marital benefits to same-sex spouses will lead to continued litigation. Interestingly, a federal court recently ruled that the federal government had to provide spousal benefits to the partner of a female court employee in Oregon, after the couple registered as domestic partners. The Office of Personnel Management asserted that a domestic partnership should not be recognized as a marriage, and more litigation on this issue is likely.
Employee benefits can be complex, and there’s no way for us to cover all the workplace issues that might arise. If your employer won’t recognize your relationship, contact a local attorney, the National Center for Lesbian Rights at www.nclrights.org, the Human Rights Campaign at www.hrc.org, or Gay & Lesbian Advocates & Defenders, at www.glad.org.
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
While California now allows same-sex couples to marry, that wasn’t the case for many years. Many gay and lesbian couples in California have registered as domestic partners in order to obtain marriage equivalent benefits. Today, same-sex couples still have the option of registering rather than marrying in California. The history of the legal rules in California is both interesting and instructive.
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).
Neither partner may be married to, or in a registered domestic partnership with, someone else.
The partners no longer need to live together, as was previously required. 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 partners 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.
It’s important to know that if you are already state registered and you want to get married (either for personal reasons or to obtain federal benefits), you can do so without terminating your domestic partnership. However, your earlier registration date will still be your “date of marriage” for all financial purposes.
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.
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 “Proposition 8”—
a constitutional amendment that reinstated the ban, and the amendment itself was upheld by the state court as constitutional. While we always had grave doubts as to the legal wisdom of that decision, it remained the law until June of 2013, when the United States Supreme Court threw out the challenge to a federal court decision that had declared the initiative unconstitutional. Thus, both marriage and domestic partnership options are available in California. We expect that most couples will prefer to marry rather than register as domestic partners, given the importance of federal benefits. Someday, the Golden State may eliminate the domestic partnership option as most other marriage-equality states have done.
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.
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 so on—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.
Keep in mind, however, that for the most part, domestic partners are not considered married spouses under federal law.
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, both members of almost all registered domestic partnerships 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 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 federally taxable. Also, in the community property states, you may treat your total income as community property for state tax purposes, but not federal. On the other hand, you won’t be hit with the marriage penalty that often increases the income tax obligations of federally married spouses. 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.
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.
If only one partner wants to revoke the termination, he or she must file a form called Notice of Revocation of Termination of Domestic Partnership with the Secretary of State, and send a copy to his or her partner in the mail.
When you terminate your partnership by filing the one-page form with the Secretary of State, you don’t have the right to have a court make decisions about your property, and you can’t go back later and challenge the division or any other element of your agreement with your former partner—though you can sue to enforce agreements you and your partner made, if he or she is not following through on them.
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.
Other Marriage Equivalent Laws
In seven other states (Colorado, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Washington), same-sex couples can enter into a civil union or domestic partnership. If they live in any of these marriage equivalent states (and maybe in some other states as well, see below), the civil union or state-registered domestic partnership will give them just about all of the legal rights of marriage under state law. However, the federal agencies don’t currently recognize these legal partnerships bestowed by state law. In those states that also allow same-sex couples to marry, it doesn’t make a lot of sense for most couples to register in lieu of marrying.
Requirements for a Civil Union or Domestic Partnership
To enter a civil union or state-registered domestic partnership, typically both parties must be at least 18 years old, of sound mind, not related, and not already in a marriage or another legal partnership. A civil union license or domestic partnership registration is required. There is no residency requirement for entering into a civil union or state-registered domestic partnership. In most states, you simply fill out the form and mail it in to the appropriate government office, but in some states, as was the case in Vermont, the civil union must be certified by a judge, a justice of the peace, or a clergy member who lives in Vermont (or has a special certification from the Vermont probate court).
Rights and Responsibilities of a Civil Union or Domestic Partnership
Parties to a civil union or state-registered domestic partnership generally accept responsibility to support each other just as spouses do, and the rights that come with a civil union or domestic partnership are the same as those granted to spouses in a marriage in whatever state you registered in. These most typically include:
use of family laws that cover annulment, divorce, child custody, child support, alimony, domestic violence, adoption, and property division, according to the marital property laws of your state
the right to sue for wrongful death, loss of consortium, and any other tort (personal injury) or legal claim related to spousal relationships
medical rights, such as hospital visitation, notification, and durable power of attorney (allowing partners to make health care decisions for each other)
family leave benefits and public assistance benefits
the right to hold property as tenants by the entirety
the right to adopt a partner’s child under stepparent procedures
immunity from being compelled to testify against a partner, and the same marital communication privileges as a spouse
the right to file joint state tax returns (and typically the duty to file your state tax returns as a married couple), and
the right to inherit from each other without a will.
Although couples from other states can enter into legal relationships in these states, many of their home states will not acknowledge out-of-state registrations for any purpose, including ending the relationships (see below). Only a few states have recognized domestic partnerships and civil unions for various purposes.
One of the oddest corners of uncertainty involves the issue of domestic partnership or civil union registration in the marriage equality states. It would seem logical that if a state allows gay folks to marry, it would also recognize a marriage equivalent registration from another state. But that’s not always the case, and the rules for interstate recognition have not been fully resolved. If you move across state lines you should check with an attorney to determine whether you also should register or marry in your new home state.
Ending a Domestic Partnership or Civil Union
To end a civil union or marriage equivalent domestic partnership you must go to court, just as if you were married. Most states have residency requirements: At least one party must have lived in the filing state for a specified period of time, usually between six months and a year before filing the petition for dissolution.
As we’ve discussed, whether other state courts will process the dissolution of a domestic partnership or civil union is an open question. In the past, one Connecticut court refused to consider the Vermont civil union of two Connecticut residents a contract for purposes of awarding support and dividing property, and a Texas judge refused to grant a divorce to two men married in Massachusetts. But in West Virginia, Iowa, and Wyoming, judges have granted divorces to couples who entered into civil unions in Vermont. And, keep in mind, some states (like California) allow you to dissolve your domestic partnership if you registered there, without having to relocate to California to file for dissolution.
The New Jersey Civil Union Law and the Status of New Jersey Domestic Partnerships
Starting in 2004, New Jersey offered same-sex couples some legal protections through domestic partnership registration. But in response to a New Jersey Supreme Court order that same-sex couples be treated the same as heterosexual couples under New Jersey law, the legislature enacted a civil union law similar to that in Vermont, which took effect in February 2007.
Partners in civil unions in New Jersey have all of the same state rights and obligations as married couples under state law. New Jersey law also forbids both individuals and businesses from discriminating against civil union partners.
If you were registered as domestic partners in New Jersey before February 2007, you can retain that status and the rights and responsibilities that came with it, which are significant but not as extensive as those attached to the new civil union status. For example, domestic partners don’t have the right to sue for wrongful death, while civil union partners do. Unlike married couples and those in civil unions, domestic partners will not be responsible for each other’s debts (unless, of course, the debt was undertaken jointly). Finally, while the domestic partnership law allows domestic partners to ask for alimony or property sharing when a relationship ends, a judge does not have to rule on these questions—even though it does require that the relationship be ended formally through the courts. In contrast, civil union partners have the right to an equitable distribution of property through the courts, like married couples.
If you enter into a civil union, your previous domestic partnership is automatically terminated. And as of February 19, 2007, the only couples eligible for domestic partnership registration in New Jersey are those in which both partners are 62 years old or older (they can be of the same sex or opposite sexes). New Jersey recently started allowing same-sex couples to marry, and it’s likely that the civil union status will soon be closed out, with couples “upgraded” to marriage unless they file for dissolution within a designated time period.
The Status of “Outdated” Civil Unions
In New England, the arrival of marriage means that states must deal with their marriage equivalent systems. Now that Connecticut offers full legal marriage, the state has phased out civil unions, which are no longer allowed. All existing civil unions have been “upgraded” automatically to marriages—except for those already in the midst of dissolutions. Previously registered civil union partners need not do anything to obtain the upgraded status, but should consider themselves lawfully wedded.
A similar protocol has been worked out for New Hampshire: Domestic partners were upgraded to married spouses as of January 1, 2011, unless they had already married on their own or have initiated dissolution proceedings.
Vermont has taken a slightly different path. There, existing civil unions remain as such, with all the rights and duties of marriage. Civil union partners may voluntarily upgrade to marriage by formally marrying, but otherwise they will remain civil union partners.
Pre- and Postpartnership Agreements
Just as with the rules of full legal marriage, 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 a allow couple to set out their specific wishes about how they will share property and income, as well as 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 out 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 to the other party all assets owned and debts owed. And although it’s not technically required, it’s strongly recommended that each partner have a separate 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 for whom the person is legally responsible.
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 Prenuptial Agreements: How to Write a Fair & Lasting Contract, by Katherine E. Stoner and Shae Irving. This book 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 postpartnership agreement. However, be particularly careful to find an attorney who is knowledgeable in this area. Postnuptial agreements are strongly disfavored by courts and have even stricter rules than prepartnership agreements.
Marriage Lite: Relationship Recognition in Wisconsin and Colorado
Colorado was one of the most recent states to come on board with some form of relationship recognition for same-sex couples, opting also for a watered-down version in 2009. Maine had the most heartbreaking story, beginning with its initial passage of a limited form of domestic partnership, then briefly flirting with a legislatively imposed marriage law, overturned by the voters, putting the state back at square one—a limited form of domestic partnership, and then soon thereafter, full legal marriage equality. Wisconsin has its own limited domestic partnership law.
Colorado’s Reciprocal Beneficiaries Law
As of July 2009, Colorado had a reciprocal beneficiaries law, allowing a couple to designate each other as beneficiaries and to choose from a list of rights by initialing an agreement form that’s set out in the law. This creates a permanent record of what the partners have agreed to. (This is an exception to the rule that we keep reminding you of, that in most states, you must meet rigorous standards for a prenuptial agreement that sets out your choices about these rights. It’s also different from a prenuptial agreement in that it’s part of the public record once you file it with the county clerk.) You can choose among the following rights: avoiding probate through trusts; designating beneficiaries under public employee benefits plans or, in some cases, private plans; owning property in the same joint form used by married couples; having priority as a conservator or the like; hospital visitation and the right to make anatomical gifts and decide on body disposition after death; inheritance if one partner dies without a will; workers’ compensation; and rights to bring an action for the wrongful death of a partner. You can terminate your reciprocal beneficiary relationship by using a form provided by the state. Fortunately, Colorado passed a fully marriage-equivalent civil union law in 2013, so very few couples will bother with the reciprocal beneficiaries registration.
Wisconsin’s Domestic Partnership Law
In Wisconsin, domestic partnership is limited to same-sex couples, and requires only that the partners both be over 18, live together, and not be closely related or married (or domestically partnered) to anyone else. Domestic partners don’t have all the same rights as married couples in Wisconsin, but the rights they do have aren’t insignificant—they include inheritance rights, a presumption that partners hold property as joint tenants, and the ability to sue for wrongful death of a partner, along with a number of other rights.
Is Marriage (or Its Equivalent) Right for You?
Now that same-sex couples in a significant minority of states actually have the opportunity to enter into legal relationships that include important rights and responsibilities, you will have to decide whether marriage or a marriage equivalent domestic partnership or civil union is the best thing for you. Getting married or registering under new laws is like sitting in the emergency exit row of an airplane: You need to receive special warnings and be prepared for some real uncertainties, legally speaking.
How Do You Want to Structure Your Relationship?
Even though many LGBT activists have worked for decades for the kind of social and legal legitimacy that marriage confers, plenty of people have mixed feelings about it. Some reject domestic partnership and civil unions as a “second-class” legal status. Others believe that marriage as an institution should be abolished, and the state should stay out of people’s private lives. There are also a great number of people who agree that marriage should be available to all, but they themselves would not marry—either because they prefer the freedom to make their own agreements about how to share their lives, without the encumbrance of the state’s requirements, or because marriage is not in their economic interest. Whether or not you feel ready to take on the responsibilities of marriage, you now have options that earlier generations of same-sex couples could only dream of. Explore these choices, learn about them, talk about them—and then make the decision that’s best for your family.
For an in-depth analysis of all the personal, financial, and legal ramifications of legally partnering or marrying, we encourage you to read Nolo’s newest book for lesbians and gay men, and those who advise and befriend them: Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnership & Civil Unions, by Frederick Hertz, with Emily Doskow. For up-to-date information on the marriage equality battle, check out the authors’ blogs, www.MakingItLegal.net and www.QueerJustice.com.
One of the most important complications that comes with marriage or legal partnership is that it remains unclear whether all of the other states will recognize your relationship, or how the federal government will treat your marriage-equivalent partnership. And it may take quite a few years for the courts to unscramble all of these complexities. Ironic as it seems, if you get married but live in a nonrecognition state, you can enjoy federal recognition without having any local or state validation.
The key lesson to remember, given all these gyrations, is that the actual legal status of your relationship may change from region to region, and from one government agency to another and one situation to another. Don’t make any assumptions about what the rules are—instead, learn where things stand in your state and then take appropriate action, especially if you live in a state where full legal recognition is not the law of the land.
In addition to the uncertainties that go with getting married under untested laws, you should consider the same pros and cons that every couple considering marriage should contemplate. For example, depending on your economic situation, marriage might be a positive or a negative move—remember, marriage means not just sharing assets, but also joint liability for debts and potentially the obligation to pay alimony if you break up. Also, marriage and divorce records are public, so there’s no staying closeted once you tie the knot.
Marrying may cause you or your partner to lose state-provided public benefits, because your incomes will be counted.
Every marriage requires a formal ceremony, and every marital separation requires some kind of formal court action—quite often with the help of a lawyer. In many states, there is a residency requirement for divorce, so if you intend to marry, register, or enter a civil union in a state other than the one in which you live, consider the ramifications if your relationship does not last. In contrast, unmarried couples can break up informally, and without a state’s requiring them to live there for a certain period of time.
In most states, assets acquired during marriage must be divided equally if the marriage ends; in community property states the partners’ earnings during the marriage are considered community property unless you agree otherwise in writing. By contrast, if you are unmarried, your property is co-owned only if you have an agreement to make it so and have titled it jointly; and the same is true for debts and obligations. Transfers of property when a relationship ends are tax free for legally married couples, but not for unmarrieds, and probably not for most couples in domestic partnerships (although your state’s law may provide certain tax exemptions).
If you don’t marry, you will need to make sure that you write a will, create a trust, or designate your partner as beneficiary on your IRAs and other holdings, in order to pass assets at your death in the same way that spouses can (without any written documents). And certain tax benefits are forever denied to unmarried couples. For example, a surviving spouse generally inherits all the property if the other spouse dies without a will and has no children; this would be true for marriage equivalent relationships as well. However, at death, a bequest from one spouse to another is free from federal estate tax, regardless of its size. In some states, you can’t disinherit a spouse unless you have a prepartnership agreement that addresses the issue specifically.
If you have children or hope to raise a family, marriage is probably the right option. Married couples by law have equal rights to raise their children, as well as equal obligations of support. If the relationship breaks up, both parents can seek visitation and custody, and if one parent dies, the other steps right in as the primary legal parent. The same is true for unmarried couples only if both are legal parents of the children. Otherwise, the second parent may be left out in the cold (see Chapter 10).
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