Domestic Partnership Divorce & Dissolution FAQ
© April 2013 Paul W. Thorndal (download *.pdf)
Q: My partner and I registered our domestic partnership in 2006. We didn’t get married after the California Supreme Court issued its decision permitting same sex marriage in May 2008. Does California’s Proposition 8 affect our rights as domestic partners?
A: No. Neither the Supreme Court’s decision permitting same sex marriage in May 2008 nor the California voters’ passage of Proposition 8 affected California domestic partnership rights at all.
Q: My partner and I formally 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 local governments or even 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 can almost always 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 registered 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. Put “A.B. 205” into your favorite internet search engine, and you will find that there are many websites which discuss the many benefits conferred upon California registered domestic partners. One of the obligations of registration, however, is that registered domestic partners must now go through the same court divorce procedures that husbands and wives must go through to terminate a legal marriage. Unless the partners meet a very restrictive set of conditions, 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 procedure, some domestic partners can terminate their California domestic partnership by filing a notarized Notice of Termination of Domestic Partnership with the Secretary of State. This procedure is ONLY available if (1) the Notice is signed by both parties; (2) there are no children of the relationship and neither member 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 compensation 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 judgment of dissolution from a court.
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. Mediation brings parties together with a mediator to work out solutions to problems. Separating is hard enough without court battles. No one wants a judge to decide how their property should be divided or, worse yet, when they get to see their kids. Everyone should work together to resolve whatever can be resolved by agreement. That doesn’t mean that these alternate, out-of-court procedures only work for couples who can easily agree. 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 unquestionably force the other into court by refusing to agree to an out-of-court resolution process. Even with a Collaborative Practice agreement or mediation, there will still 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.
Q: Do community property laws apply to registered domestic partners?
A: Yes. For virtually all aspects of California law, registered domestic partners are now treated as a married man and wife. This includes community property laws and laws regarding spousal support and child support. These laws can be very complicated, but there are many resources available to divorcing couples to help you work through the legal issues. There are many unresolved legal questions for domestic partners, though, because the United States government does not recognize the California 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. The IRS will not treat support payments by domestic partners the same because the federal government does not recognize the domestic partnership as a marriage, so separating couples should seek legal and/or professional financial advice if they fall within this situation or want to know what their rights and obligations are.
Q: What if we registered our domestic partnership before the new law took effect on January 1, 2005?
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 the new law took effect, then the current law applies to you. 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 that question 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 the new 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 or your partner can’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 party 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 have also recognized that the “putative spouse” doctrine can apply to domestic partners as well as married couples. A person who reasonably believes that they are domestic partners, but through no fault of their own discovers that their domestic partnership status was improperly terminated or was never 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 was never 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: What if we moved out of the state without terminating our relationship before the law changed, and we never got the notice from the Secretary of State?
A: You should consult a lawyer about your options. There remain many areas of the law which have not been tested in courts, largely because the only way to challenge the retroactive application of the law is for a particular person to choose to litigate their dispute all the way through the trial court to the appellate courts. That is very expensive, time-consuming, and exhausting, and most people just settle with their ex-partners when these issues arise. Besides, even if they could afford to fight the application of the law, many separating same-sex couples feel uneasy about challenging the constitutional legitimacy of rights and obligations so many people fought so long to obtain. As a general matter, people should be aware that the California Family Code says that new family code laws are always retroactive unless the Legislature expressly says otherwise. (Family Code §4.) This has been the law for straight married couples for a long time, and it is now the law for registered domestic partners as well. This is another reason that separated domestic partners really need to consider legally dissolving their former relationships. Unless a domestic partnership is formally dissolved, the separated partners continue to risk application of laws which the Legislature hasn’t even thought of yet. A.B. 205 is one example of how drastically the rights and obligations of parties can change. Traditional married couples may not know exactly how the law will affect them if they separate without ever divorcing, but they at least know that they face some sort of risk if they stay married after separation. Registered domestic partners often separate, or move away, without even thinking about the implications of their registered relationship.
Q: Do these laws apply even if we moved out of the state after we registered, or if we never lived in California at all?
A: Yes. California courts will take jurisdiction to dissolve registered domestic partnerships whether or not the parties live in California. This is one situation where California treats registered partners differently than it treats married spouses. Married couples must live in the State of California for six months before a California court will take jurisdiction of their dissolution. There is no residency requirement for dissolution of a domestic partnership. The California Legislature realized that unlike the situation for divorcing straight couples, courts in other states would not take jurisdiction to dissolve a formal partnership those states didn’t legally recognize. 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 might be able to haul you into a California court, seeking an award of community property or even support.
Q: What if we registered our partnership in another state, but not California?
A: Here it gets complicated. You really should consult an attorney if you registered your partnership in another state or foreign country and are now separating, whether or not you registered in California. The California Family Code says that a legal union of two same-sex people, “other than a marriage, that was validly formed in another jurisdiction, and that is substantially equivalent to a domestic partnership as defined in this part, shall be recognized as a valid domestic partnership in this state regardless of whether it bears the name domestic partnership.” (Family Code §299.2.) What does that mean? Good question. Attorneys and courts are still working on that one. We can tell you that as it is currently understood, this means that California will treat Vermont civil unions – but not Massachusetts same-sex marriages – the same as California registered domestic partnerships. A California court will thus most likely take jurisdiction to dissolve a civil union or domestic partnership of another state or foreign country, so long as the other jurisdiction treats registered sex-sex couples as virtually the same as married straight couples for all aspects of the law, but it is “not a marriage.” Similarly, if couples register their partnership in one of these other states, and then move to California and register their partnership here, California courts will consider their earlier out-of-state registration as their “date of registration,” rather than the later date they registered in California. Some states or foreign countries confer very real legal benefits upon registered same-sex couples, but still less than they confer upon married straight couples. These are most likely not “substantially equivalent” to California registration, so they may not be recognized here. This can lead to incongruous results. So, as I said, it gets complicated, and you should consult an attorney if you are worried about it.
Q: My partner and I registered our domestic partnership with the State of California, but we also married in summer 2008 after the California Supreme Court’s marriage opinion. Now we are breaking up. Does the marriage affect our ability to end our legal relationship now that Proposition 8 says that same sex marriages are not valid or recognized?
A: No, CA will permit you to dissolve both your registered domestic partnership and marriage in the same legal action, but you need to be sure to ask it to do both, and to include both in the judgment of dissolution. After Prop 8 passed, the Supreme Court upheld Prop 8 as prohibiting subsequent marriages between partners of the same sex in California, but the Court upheld the validity of marriages legally entered before Prop 8 passed in November 2008. After the Supreme Court opinion was issued, the California Legislature passed a marriage reciprocity bill, now codified at Family Code section 308, which states that California recognizes all marriages of same sex couples validity entered anywhere (either California or another state or country) before November 4, 2008, as legal marriages. Section 308 further recognizes all same sex marriages legally entered after November 4, 2008, in any jurisdiction outside of California as legal unions conferring all rights and benefits of marriage, other than the name marriage. What does that mean? Practically speaking, when coupled with California law recognizing foreign civil unions or domestic partnerships, it means that California now recognizes all same sex marriages and spousal equivalent relationships, whether entered in California or somewhere else, as conferring all rights and benefits of marriage under California law. Those rights include the right to dissolve the relationships in court. As mentioned, any overlapping legal relationships can be dissolved in a single action. The earliest-entered relationship will be treated as the “date of marriage” for dissolution purposes, meaning the date that community property rights commence, and the date that entitlement to spousal support commences. This is true for all California residents. If at least one of you is not a California resident, then California will recognize the California domestic partnership and dissolve it, but California will only dissolve marriages or civil unions of other jurisdictions for residents. If you are not a California resident, California will take jurisdiction over your domestic partnership and a marriage that was validly entered in California – but not any other state – and you should request dissolution of both in the same action, which should be filed in the county where the marriage license was issued.
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 man and woman share in retirement benefits accumulated during marriage as community property. Upon dissolution, 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. However, if you are facing these sorts of issues in the dissolution of your registered domestic partnership, I recommend 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 be used by same sex couples to divide the interests without imposition of substantial taxes and penalties. This is because the federal government refuses to recognize domestic partners as “spouses” in law at this time. This raises many issues as to valuation of community interests given tax 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. However, I 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 still take jurisdiction to resolve property aspects of any registered domestic partnerships upon separation, but disputed custody and visitation need to be worked out in the jurisdiction where the child resides. Although A.B. 205 confers parental rights upon registered domestic partners just as if they were a married husband and wife, many people don’t realize this may only apply so long as they live in California. Every parent should consider the possibility that they or their partner may move at some point down the road, and many jurisdictions are outright hostile to the rights and interests of LGBT families. Many states have amended their constitutions expressly to preclude the recognition of any legal rights other states may give registered same-sex couples, including parental rights. The parental rights and obligations of LGBT parents recognized in California are a great step toward equality. However, we encourage same-sex parents to fully protect the legal relationship they have with their children. Adoptions are widely recognized around the world, and they are the safest means of protecting a parental relationship from the potential claims of former partners, their families, or even the government.
Q: Can’t we just work out a financial agreement and file court papers without an attorney?
A: Yes. There are many resources available for separating couples to handle their own dissolution actions. Put “California divorce self-help” into an internet search engine, and you will find some of them on-line. There are also very good published books which can assist you. One good available resource is the California Judicial Council’s self-help center, which can be accessed from the Council’s official website, www.courtinfo.ca.gov. Congratulations on being able to work out your separation by yourselves. Separating couples should definitely be aware, though, that any financial agreements between domestic partners will be treated as “interspousal financial agreements,” subject to the same limitations as those between married husbands and wives. There is a rebuttable presumption of undue influence as to any agreement in which one spouse obtains an advantage over the other. This will unquestionably include agreements calling for unequal distribution of community assets, or one partner’s written waiver of spousal support rights. California law also imposes detailed financial disclosure requirements on married spouses or registered domestic partners, so be sure to study these requirements or consult with an attorney before assuming your private agreement is legally enforceable.
Q: I have heard about the current cases pending in the Supreme Court about the constitutionality of Prop 8 and the constitutionality of the federal Defense of Marriage Act. Will the rulings in those cases have any effect on my California domestic partnership?
A: We don’t know yet. The Prop 8 case likely will not have any effect on a domestic partnership, because it simply involves the question of whether California could legally prohibit marriages between same sex couples when Prop 8 passed. The case doesn’t raise any question about domestic partnership, and all of the briefing in the Prop 8 case both for and against recognized that California legitimately confers all state spousal rights through domestic partnership. The DOMA case may or may not affect domestic partners. Currently California couples who are married or domestic partners receive all state rights of marriages, but are denied all federal rights of marriage. If the federal DOMA is overturned as unconstitutional, it is clear that married couples will then be recognized as “married” under federal law, but it not clear whether domestic partners will be recognized as receiving all federal rights of marriage. Federal law as it now exists recognizes only two categories, i.e., single or married. There is no third category, of “spousal equivalent.” Courts and federal agencies will still have to work out how federal recognition of marriages for same sex couples will affect domestic partners.
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 Wald & Thorndal, 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.