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What does it mean to register
as domestic partners in California?
California has created a domestic partnership system
so that same-sex couples can receive legal protections
for their relationships similar to those that opposite-sex
couples receive when they marry. The state legislature
expanded the system in AB 205 to include many additional
benefits and responsibilities.
What legal protections do we get if
we register as domestic partners now?
Under current California law, couples who register as domestic
partners have:
- the right to receive a portion of your partners property if he or she dies without a will;
- the right to use employee sick leave to care for a sick partner or partners child;
- the right to hospital visitation;
- the right to make medical decisions if your partner becomes incapacitated;
- the right to sue for wrongful death of your partner;
- the right to use stepparent adoption procedures to adopt a partners child; and
- the right to receive unemployment benefits if forced to relocate because of a partners job.
How does the new law change things ?
With some important exceptions, AB 205 makes domestic partnerships
much like marriage. Like married couples, domestic partners
will become financially responsible for each other -- both
during the relationship and possibly after it ends. As domestic
partners you will be responsible for each others debts. If
your partner takes out a loan for a new car and fails to pay,
the bank could come after you. If you decide to split up,
a court would treat the breakup like a divorce and could order
you to pay financial support to your partner (or the other
way around).
Californias community property system will also apply to domestic partnerships. So, your partner would automatically be entitled to a half interest in any property you buy after you become partners. If you break up, all the community property will be divided equally between you and your partner. Of course, this also means that you gain the right to use the court system to help you divide your assets.
Additional benefits include:
- access to housing for families, students, or senior citizens;
- rent control protections;
- treatment as spouse under workers compensation and public assistance; and
- the right not to have to testify against your partner in a legal proceeding.
How does the law affect parenting rights?
If one partner gives birth after getting a domestic partnership, California will treat the other partner as a parent to the child. If either partner has a child prior to entering into a domestic partnership or adopts individually, California will allow the other partner to adopt just as it would a stepparent. If you have a child during the partnership or both adopt a child and later decide to split up, the California courts will determine custody and visitation. Both parents will be responsible for support.
Just as with married couples, domestic partners never take on parental rights to their partners children from prior relationships.
How does domestic partnership differ from marriage?
While the AB 205 takes a giant step toward creating equality
for same-sex couples, it doesnt give same-sex couples all
the rights and responsibilities of marriage. To begin with,
it doesnt allow couples to walk down the aisle, say I do,
and announce to the world that they are a married couple.
There is a great deal of cultural, historical and social significance
attached to that statement and the status that goes with it.
It may be the single most important aspect of marriage.
The law does not give same-sex couples any of the more than
1000 rights and benefits that the federal government gives
to married couples, including:
- the right to sponsor a partner for immigration purposes;
- the right to family-related Social Security benefits;
- the right to federal income and estate tax breaks; and
- the right to purchase continued health coverage for a partner after the loss of a job.
Right now, the federal government wont let any state extend these federal benefits to same-sex couples, no matter what the relationship is called.
Even under California law, same-sex couples are not completely
equal. Domestic Partners cannot file joint state income taxes
and state employees are not entitled to the same benefits
under the states long-term care benefits package. (This could
be an advantage. See below.)
In addition, if you enter into a California domestic partnership,
many of the protections will not exist if and when you are
outside California. For instance, if you or your partner are
injured in another state, you are allowed hospital visitation
or the right to make emergency medical decisions on behalf
of your partner.
Who is eligible to register as domestic partners?
In order to register as domestic partners:
- You must be members of the same sex. (Opposite-sex couples over the age of 62 are eligible under certain circumstances.)
- You must share the same residence.
- You must agree to be responsible for each others basic living expenses.
- Neither party can be married or in another domestic partnership.
- You cant be related in a way that would prevent you from being married under state law.
- Both of you must be over 18.
How do we enter into a domestic partnership?
Getting a domestic partnership is simple. All you need to
do is fill out a form which will require the signature of
both parties, have it notarized and either mail it to the
Secretary of States office in Sacramento or take it in person
to one of the Secretary of States offices in San Diego, Los
Angeles, Fresno, San Francisco or Sacramento. Youll need
to include a $10 filing fee. Download
a copy of the form. Get
the addresses of the Secretary of State.
Do we need to be Californians to register as domestic partners?
No. You and your partner must live at the same address, but you dont have to live in California.
Our city has a domestic partnership program. Do we need to register with the state if weve already registered with the city?
Yes. To be sure you receive all the benefits of the domestic partnership, youll need to register with the state.
Will our domestic partnership be valid outside of California?
Yes. Even if you dont live in California, you and your partner will be domestic partners.
But the more difficult question is whether federal and other
state governments and private businesses will respect your
domestic partnership. Businesses that already recognize same-sex
couples (through domestic partnerships or similar systems)
almost certainly will. Its hard to say what happens with
businesses that dont recognize same-sex couples yet. Some
probably havent been asked and may be willing. (Click here
to find out how to approach your employer.) Some will doubtless
be opposed and will refuse.
Vermont, which has civil unions for same-sex couples, will likely treat your domestic partnership as a civil union. Massachusetts, which is expected to allow same-sex couples to marry soon, will likely treat your domestic partnership as it does a marriage. The federal government has a law that says it will not recognize same-sex relationships. Many states will almost certainly refuse to recognize domestic partnerships from California, at least at first. The bottom line is that this issue is headed for the courts and will take time to resolve.
While these issues are being resolved, you need to protect
your relationship. Get
more information about medical powers of attorney,
wills and other legal documents.
Are there any advantages to California domestic partnership over a Vermont civil union or marriage from Canada or Massachusetts?
Yes. California makes it possible for those who dont live in the state to end the domestic partnership. The main drawback of getting a civil union in Vermont or married in Canada or Massachusetts is that its difficult for nonresidents to end their relationships because Vermont, Canada and Massachusetts each have one-year residency requirements for divorce. The new California law solves this problem by saying that all domestic partners agree that the California courts will have the right to end the relationship, divide joint property and determine visitation and custody of any children. (See the question below for more details.)
If we decide to split up, how do we get out of the domestic partnership?
Right now, all you have to do is file a notice of termination
with the Secretary of State. Only one party is required to
sign, but it must be notarized. Download
a PDF form.
After January 1, 2005, you will have to go get a divorce in most circumstances. Partners who agree to separate, dont own real estate and have been together less than five years will be able to end the partnership simply by filing a notice with the Secretary.
Could I be required to support my ex if we break up?
Probably not under the current law. However, your partnership
will be treated the same as a marriage when it ends. That
means that you (or your partner) could be required to provide
support. California community property laws will also apply.
That means all property that you buy after you start the domestic
partnership is joint property and must be equally divided
if you split up.
Can we still end a domestic partnership if we dont live in California?
Yes. When you register in California, you agree to let the California courts end your domestic partnership, divide your assets and made decisions regarding child custody and visitation just as they do in divorce proceedings.
If we dont live in California, could I still be required to pay support to my ex?
Maybe. Since you are consenting to have your relationship dissolved by the California courts, a California court could order you to pay support. However, its possible that another state court would not follow the order of the California court.
I got a civil union from Vermont with my ex-partner, but we never ended it. Can I now get a domestic partnership with my new partner?
No. Unfortunately, Vermont has a one-year residency requirement for ending a civil union, which makes it difficult for those who dont live in Vermont to end their civil unions. California will not let you get a domestic partnership if you are currently married or in another domestic partnership. California would treat the Vermont civil union the same as a domestic partnership, which would bar you from entering into another domestic partnership before ending the earlier one.
What if I got married in Canada or Massachusetts, but couldnt get divorced. Can I get a domestic partnership with my new partner?
No. While the language of the law it less clear, the state clearly only intends for those who are not otherwise legally bound in another relationship to be eligible for domestic partnership. Like Vermont, both Canada and Massachusetts have a one-year residency requirement for divorce, which makes it difficult for nonresident same-sex couples to get divorced.
We have already registered as domestic partners in California.
Will we need to register again to take advantage of AB 205?
No. You will automatically receive the additional benefits and responsibilities under the new law. If you are not comfortable taking on these additional responsibilities, you should terminate your domestic partnership before the new law goes into effect in January 2005.
We have a civil union from Vermont but plan to move to California. Will we need to register as domestic partners?
No. California recognizes your civil union the same as if
you registered as a domestic partner. You will receive all
the benefits and responsibilities that go with California
domestic partnership.
We got married in Canada. Do we need to register as domestic partners too?
Probably not. While it is not spelled out as clearly under the California law, the state clearly intends to extend domestic partnership benefits to couples who have sought legal recognition for their relationship.
Since Massachusetts is likely to have same-sex marriage soon, should I wait to get married in Massachusetts?
If all goes as expected, Massachusetts will be the only state in the country where same-sex couples will have the right to get married. And lets face it, being able to say youre married is a lot different from saying you have a domestic partnership. However, for those who dont live in Massachusetts, getting married there may be impossible. There is an old law on the books that, according to the governor of Massachusetts, means you can't marry in Massachusetts if you wouldn't be allowed to do so in your home state, so it may well be that couples who don't live in Massachusetts won't be issued marriage licenses there. Also, like Vermont, Massachusetts has a one-year residency requirement to obtain a divorce if you decide to break up, making it virtually impossible for those who live outside of Massachusetts to get divorced. Unfortunately, Canada also has a one-year residency requirement for divorce. With a domestic partnership from California, you wont have these problems because regardless of where you live, the state will allow you to enter into a domestic partnership, and once you do, you have agreed that the California courts can dissolve your domestic partnership.
If you do get married in Massachusetts and move to California, it is likely that California would treat your marriage as it does domestic partnerships. See question above.
If we register as domestic partners can I sponsor my partner for immigration purposes?
No. The federal government will not recognize your California
domestic partnership. While this policy may be challenged
in court, you could be putting your non-national partner at
risk of deportation by attempting to sponsor him or her until
the courts have struck this policy down or Congress has repealed
it.
If we get a domestic partnership, will it be easier for my partner and me to adopt a child together?
Yes. Couples will be able to adopt jointly, eliminating the
expense and inconvenience of having to go through two legal
proceedings to adopt one child.
If we get a domestic partnership, will that mean that my spouse automatically becomes the legal guardian of my children?
No. Even if you were to get married to a person of the opposite sex in the U.S., your spouse would not become legal guardian of your children until you get a step-parent adoption.
If we get a California domestic partnership, can we submit a joint tax return?
No. Under California law you must continue to file your taxes as individuals. This applies to both state and federal returns.
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