FAQs

© November 2016 Deborah H. Wald

Q: My partner and I are registered as domestic partners with the State of California. We are not married. Does the United States Supreme Court’s 2015 decision in Obergefell v. Hodges, requiring all 50 states to recognize the marriages of lesbian and gay couples, mean that we now are recognized as legal spouses on a federal level?

A: No. While the federal government now recognizes all marriages, it generally does not recognize other types of legal unions (e.g. domestic partnerships and civil unions). Some limited federal benefits will be available to couples in domestic partnerships and civil unions because availability of the specific benefit is based on state law, rather than federal law. But generally, eligibility for federal benefits is based on federal law, and federal law only recognizes marriage. The easiest solution for registered domestic partners who want the full benefits of marriage on a federal level is to get married. However, there are valid reasons that some couples may want to remain domestic partners and not marry. For example, anyone who is in a domestic partnership and receiving “needs based” federal benefits such as Medi-Cal definitely should consult with an attorney before marrying, since having their spouse’s income attributed to them may disqualify them from receiving the benefit.

Q: My partner and I registered our domestic partnership a few years ago, and we just broke up. What do we need to do to terminate the domestic partnership?

A: It depends on where you registered. Many couples registered with county or city governments, or with private employers, to obtain health or other work benefits. If you registered with a business or local government, go to the department or agency where you registered and follow their specific termination requirements. For these types of registrations, you almost always can terminate the registration with a simple form. For domestic partners registered with the California Secretary of State, however, California’s Assembly Bill 205 significantly changed the requirements for legally terminating a domestic partnership. Effective January 1, 2005, the Family Code was amended to make registered domestic partners and married couples the same for virtually all aspects of California law. Almost all the state benefits of marriage are conferred on state registered domestic partners. One of the obligations of registration, however, is that registered domestic partners must go through the same court divorce procedures that married couples must go through to terminate a legal marriage. Unless the partners meet a very restrictive set of conditions, discussed below, the only way to terminate a state registered domestic partnership is to obtain a judgment of dissolution from a court.

Q: What are the conditions that will let us terminate our registered partnership with a simple form and avoid going to court?

A: Just like some married couples can obtain “summary dissolution” of marriage without a full-blown divorce proceeding, some domestic partners can terminate their California domestic partnerhships by filing a notarized Notice of Termination of Domestic Partnership with the Secretary of State. This procedure ONLY is available if (1) the Notice is signed by both parties; (2) there are no children of the relationship and neither party is pregnant; (3) the registered relationship is not more than five years in duration; (4) neither party has any interest in real property (i.e. real estate) other than a rental lease which will terminate within one year; (5) there are no unpaid obligations in excess of approximately $4,000, excluding automobile loans (check with an attorney regarding the exact limit); (6) the total fair market value of community property assets, excluding encumbrances and automobiles, but including deferred compensaiton and retirement plans, is less than approximately $25,000; (7) the parties have signed an agreement dividing property (community property laws still apply); (8) both parties waive any rights to support; (9) both parties have read the Secretary of State’s official brochure regarding the legal effect of termination; AND (10) both parties desire to terminate the partnership. Some registered couples meet these requirements. Many do not. For those that do not, the only way to terminate the registration is to obtain a judgement of dissolution from a court.

Q: Can we dissolve our domestic partnership in California, even if we moved out of state after we registered, or if we never lived in California at all?

A: Yes. California courts will take jurisdiction to dissolve California registered domestic partnerships whether or not the parties continue to live – or ever lived – in California. This is one situation where California treats registered partners differently than it treats married spouses. Generally speaking, married couples must live in the State of California for six months before a California court will take jurisdiction of their dissolution. However, there is no residency requirement for dissolution of a California domestic partnership. The California Legislature realized that unlike the situation for divorcing married couples, courts in other states would not necessarily take jurisdiction to dissolve a domestic partnership not legally recognized by the state. The Legislature resolved this dilemma by doing away with the residency requirement for domestic partners. People who have moved away and separated from their partners should recognize that your ex may well be able to sue you for dissolition of the partnershp in a California court, seeking an award of community property or even support, regardless of where you now live.

Q: If we are both domestic partners and married, isn’t it true that only the marriage counts?

A: No. California domestic partnerships were not merged with marriages. They still exist and have the same legal effect as they did before marriage equality became the law of the land. California state registered domestic partnerships, like marriages, can be dissolved only as provided by statute: if you only were registered for a short time and have no children, no real property, and no substantial assets or debts, you may be able to terminate your registration through the Secretary of State’s Office as described above; otherwise, your domestic partnership only can be dissolved through a court dissolution proceeding or by death of one of the partners. Ignoring your registered domestic partnership is not an option. If you break up and are both married and in a registered domestic partnership, both statuses must be dissolved by a court. This can be accomplished in a single proceeding, but you have to list both relationships in your court papers; if you dissolve the marriage without also explicitly dissolving the domestic partnership, you will remain in a legal partnership with you ex-spouse and unable to remarry.

Q: Is it true that California only has jurisdiction to dissolve California domestic partnerships, not domestic partnerships or civil unions from other states and countries?

A: California Family Code 299.2 provides that “[a] legal untion of two persons of the same sex, other than a marriage, that was validly formed in another jurisdiction, and that is substantially equivalent to a domestic partnership…, shall be recognized as a vaild domestic partnership in this state regardless of whether it bears the name domestic partnership.” Therefore, a California family court, for example, can dissolve a Vermont Civil Union or a Washington State domestic partnership just as if it were a California domestic partnership. The trick is figuring out what it means for the union to be “substantially equivalent to a domestic partnership.” The Wald Law Group takes the position in court that the substantial equivalency condition is met if either (1) the rights and benefits provided by the out-of-state legal union are substantially equivalent to those provided by a California domestic parntership (or marriage) or (2) the process for dissolving the legal union in the state of origin (e.g. Vermont for a Vermont civil union or New Jersey for a New Jersey domestic partnership or civil union) is substantially equivalent to the process for dissolving a California domestic partnership. In other words, even if the legal union is not a full marital equivalent, it is “substantially equivalent to a domestic partnership” as per Family Code 299.2 if a full court dissolution would be required to terminate it in the state from which the untion originated.

Q: If we have dissolved our domestic partnership or civil union in another state, does that automatically dissolve our California domestic partnership as well?

A: Given the variety of legal unions that have been created for same-sex couples throughout the 50 United States and abroad, and the differences in rules for how to dissolve each of them, the attorneys at The Wald Law Group never assume that any particular union has been dissolved unless an authorized administrative agency or court has specifically ruled that it is dissolved. Many same-sex couples entered into two or three or four different legal unions, all in an effort to achieve the recognition and protections for their families not then available to them through marriage. So, there are many same-sex couples who have, for example, an English Civil Partnership, followed by a Vermont Civil Union, followed by a California Domestic Partnership, followed by a marriage. If this couple is breaking up, and assuming the California Superior Court has jurisdiction, California should be able to dissolve all statuses; but only if they ALL are specifically listed in the Petition for Dissolution and in the Judgement of Dissolution.  Otherwise, it is not safe to assume that they are – in fact – dissolved. Thus, it is critically important to list ALL of your legal unions in your court papers, so the court knows to dissolve each and every one of them.

Q: My partner and I have been together since 1995, but we didn’t register with the state as domestic partners until 2010. Now we’re breaking up. Will our dissolution action take the 15 years we were together before registering into consideration? If not what do we do to address the asset division and support obligations of those years?

A: Your dissolution in the family court probably will only address the years that you were registered. Any support obligations originating from your pre-registration years probably will have to be addressed in civil court in a Marvin Action. Alternatively you could resolve all of your issues in a Collaborative Divorce, since couples involved in collaborative dissolutions do not have to follow marital law. Please click HERE for a recent article by Deborah H. Wald discussing this issue and advocating for a broadening of the rules allowing recognition of premarital perios in divorce proceedings.

Q: If we don’t meet the conditions for summary termination, isn’t there any way to terminate our partnership without going to court?

A: Yes and no. The practice of divorce law has progressed to give separating couples a variety of options. Court litigation is one option. Collaborative Practice involves a written commitment by both parties to settle their dissolution issues without court intervention. With Collaborative Practice, each party is represented by counsel, but the attorneys and clients work together to forge an agreement that both parties consider fair. Mediation brings parties together with one neutral mediator to work out solutions to problems, rather than working with separate attorneys. Either of these alternatives offers parties the opportunity to settle their differences themselves, rather than relying on a third party decision maker (e.g. a judge) to settle their differences for them. Separating is hard enough without court battles; and keeping control of the decision-making process can be of enormous benefit to many couples. No one wants a judge to decide how their property should be divided or, worse yet, when they get to see their kids. Even in difficult divorces, couples are well-advised to work together to resolve whichever of their issues can be resolved through negotiation. Every separating couple has its own particular issues of dispute, and there are powerful professional tools available to help couples break through the problem areas. However, unless both parties agree, the “default” procedure is court litigation, and one partner can force the other into court by refusing to agree to an out-of-court resolution process. And even with Collaborative Practice or mediation, there still will have to be some limited court procedure to move the “settled dissolution” through the court process to obtain a final judgment of dissolution signed by a judge. But if you can work out your differences through mediation or Collaborative Practice, you yourself never should have to appear in court – your attorney or your mediator can file the papers for you to allow the court to enter judgment without an appearance.

Q: Do community property laws apply to registered domestic partners?

A: Yes. For virtually all aspects of California law, registered domestic partners are treated exactly the same as married couples, including with regard to community property, spousal support and child support. Marital law can be very complicated, but there are many resources available to divorcing couples to help you work through your legal issues. There still are some unresolved legal questions for domestic partners, though, because the United States government generally does not recognize the California domestic partner registration. Many tax consequences of divorce which married couples take for granted do not apply to domestic partnerships.  For example, with a written agreement or court order for spousal support, support payments are tax deductible for the spouse paying support, and taxable to the spouse receiving support. So far, the IRS does not treat support payments by domestic partners the same because the federal government does not recognize the domestic partnership as a marriage. Separating domestic partners should seek professional legal and/or financial advice from someone experienced with domestic partnership law if they are concerned about their rights and obligations during a dissolution.

Q: What if we registered our domestic partnership before the law changed on January 1, 2005, making California domestic partnerhsips equivalent to marriages?

A: It doesn’t matter when you registered. If you did not file a Notice of Termination of Domestic Partnership with the California Secretary of State before AB 205 took effect on January 1, 2005, state marital law applies to you. When they enacted AB 205, the California Legislature adopted what is called an “opt out” procedure.  Partners who were registered before the new law took effect were mailed notice of the change in the law and given an opportunity to “opt out” by filing the Notice of Termination before the new law started. There was also a significant public education campaign by the state and by local interest groups before the new law took effect.  Now, as far as the State of California is concerned, the answer to the question of what rules apply to your domestic partnership is simple: If a valid Notice of Termination was filed before January 1, 2005, the couple is not in a registered domestic partnership. If a valid Notice was not filed, then the couple is still registered, and marital law applies.

Q: My partner and I just broke up after many years. When I told him that we needed to go through a divorce action, he told me that he filed a Notice of Termination in December 2004 without telling me. Am I entitled to the legal benefits of marriage?

A: You should consult with an attorney if you and your partner don’t agree as to whether a domestic partnership entered before the new law took effect in 2005 was correctly terminated. Partners who wanted to “opt out” of the new domestic partnership rules had to follow the rules set out for termination. The instructions for the Notice of Termination form expressly stated that it could be completed by one partner, but that it had to be served by certified mail on the other partner so they had proper notice of the termination. Parties who failed to comply with the strict requirements of the Notice of Termination may experience courts invalidating their terminations. Courts also have recognized that the “putative spouse” doctrine can apply to domestic partners as well as married couples. A person who reasonably believes that they are in a domestic partnership but later discovers that their domestic partnership status was improperly terminated or never was entered at all may seek benefits in court as “putative partners.” Claims of improper termination are similar to situations where the parties notarized a domestic partnership form which never was actually recorded by the Secretary of State, either because it was lost in transit or deliberately thrown in the garbage by the partner who said he or she would file it. People who don’t know whether or not they are domestic partners or entitled to benefits should consult an attorney about your individual situation.

Q: I have heard that I don’t have to share my federally-sponsored 401K or other retirement proceeds accumulated during my domestic partnership with my partner upon separation. Is that true?

A: Earnings during partnership are community property by definition, and there is no statutory exception for federally-sponsored retirement benefits. This question demonstrates perfectly how the law is uncertain in many respects for registered domestic partners. There is no question but that a married couple share in retirement benefits accumulated during marriage as community property. Upon dissolution of a marriage, 401K plans, pensions, and other retirement benefits can be divided by divorce courts by orders called Domestic Relations Orders and Qualified Domestic Relations Orders, which basically divided either spouse’s retirement accounts in two based upon community valuation, and the non-worker spouse thereafter has his or her own retirement account worth half of the community interest in the worker’s plan. It is unclear whether these rules will apply to domestic partners who are not married, however. If you are facing these sorts of issues in the dissolution of your registered domestic partnership, The Wald Law Group recommends that you consult with an attorney who regularly works with same sex couples. Because the federal benefits law ERISA provides that retirement benefits cannot be alienated by non-spouses without penalty, QDROs cannot necessarily be used by domestic partners to divide the retirement plan interests without imposition of substantial taxes and penalties. This is because the federal government does not currently recognize domestic partners as “spouses.” This raises many issues as to valuation of community interests given taxes and penalties which may be imposed, and regarding division of other community interests if an off-set is required to compensate the non-working partner for the community value of the worker’s ERISA-protected retirement plans. We believe that federal non-recognition imposes problems as to valuation and division, but not basic entitlement to the value of community contributions to tax-deferred retirement savings and pensions. You should seek legal counsel if you and your domestic partner cannot agree as to a fair division of these types of assets.

Q: What if we have children? Will a California court decide custody and visitation issues if we registered in California in the past but now live with our kids in another state?

A: No. Under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), a child’s residence for the six months before filing will determine the appropriate jurisdiction for child custody and visitation disputes. California courts will take jurisdiction to resolve property aspects of any California registered domestic partnerships upon separation, and also probably can determine whether both parties are legal parents, but custody and visitation disputes will need to be worked out in the child’s home state.

DISCLAIMER: This article is intended to provide general information about selected legal topics. The information provided is not legal advice, and is published for informational purposes only. It is not intended to be used as a substitute for specific legal advice or opinions, and the transmission of this information is not intended to create an attorney-client relationship between the sender and the receiver. No reader should act on information contained in this article without obtaining the specific advice of legal counsel. The attorneys at The Wald Law Group, P.C. are licensed to practice law in the State of California, and do not offer advice as to the laws of any other state.