Domestic Partnership Divorce & Dissolution FAQ
© July 2013 Paul W. Thorndal (download *.pdf)
Q: My partner and I registered our domestic partnership in 2006. We haven't ever gotten married. Did the passage of Prop 8 or the recent U.S. Supreme Court decisions affect our rights as domestic partners?
A: No. Neither the California Supreme Court’s decision permitting same-sex marriage in May 2008, nor the California voters’ passage of Prop 8 in November 2008, nor the U.S. Supreme Court decision striking down Prop 8 in June 2013, affected California domestic partnership rights at all.
Q: My partner and I are registered as state domestic partners but are not also married. Do the recent decisions of the United States Supreme Court involving California's Prop 8 and the federal Defense of Marriage Act (DOMA) mean that we are now recognized as legal spouses on a federal level?
A: The answer to that question is that we do not yet know. You should stay tuned for further information as the various federal agencies issue their guidelines of how they will interpret these decisions. It appears at this time that some federal benefits available to marital spouses may also be available to domestic partners, but others almost certainly will not. 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 but 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 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 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 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 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 now 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, the only way to terminate a state registered domestic partnership is to obtain a judgment of dissolution from a court.
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 will only address the years that you were registered. Any support obligations originating from your pre-registration years 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.
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 partner 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. 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 a mediator to work out solutions to problems, rather than working with 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 unquestionably 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 should never 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 now 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 are many 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 new law took effect on January 1, 2005 that made 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 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 in a domestic partnership but later 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 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: 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. Many areas of domestic partnership law still have not been tested in courts. For example, the issue of whether or not the changes in the law brought about by AB 205 effective January 1, 2005 could fairly be applied to people who registered prior to that date has yet to be litigated, 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 choose to settle with their ex-partners instead of litigating 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 and same-sex married couples as well. For this reason, couples registered as California domestic partners who have separated need to seriously consider legally dissolving their partnerships; 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. AB 205 is just one example of how drastically the rights and obligations of partners can change long after the partnership is established. 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. They should be encouraged to dissolve their partnerships if they no longer are together, regardless of how emotionally and financially draining the dissolution process may be.
Q: Can we dissolve our domestic partnership in California, 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 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. (There is an exception to this rule for same-sex couples who married in California but live in a non-recognition state. See the Same-Sex Marriage FAQ.) However, there is no residency requirement for dissolution of a California domestic partnership. The California Legislature realized that unlike the situation for divorcing straight couples, courts in other states would not necessarily take jurisdiction to dissolve a formal 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 dissolution of the partnership in a California court, seeking an award of community property or even support, regardless of where you now live.
Q: What if we registered our partnership or entered into a civil union in another state than 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 also 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 – as California registered domestic partnerships. California also will treat a New Jersey civil union – but not a New Jersey domestic partnership – as a California registered domestic partnership. A California court likely will take jurisdiction to dissolve a civil union or domestic partnership of another state or foreign country, so long as the other jurisdiction treats registered/unioned same-sex couples virtually the same as married couples for all aspects of that state’s law, but the relationship 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. However, some states and foreign countries confer lesser benefits upon registered same-sex couples than they confer upon married couples. These lesser partnerships probably are not “substantially equivalent” to California registration, and will 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, and we are also married. Now we are breaking up. Do we need to dissolve both relationships, or does dissolving our marriage automatically dissolve our domestic partnership (or vice versa)?
A: California will permit you to dissolve both your registered domestic partnership and your marriage in the same legal action, but you need to be sure to ask the court to do both, and to include both in the judgment of dissolution. The June 2013 Perry decision by the U.S. Supreme Court means that more marriages will be recognized in California, but it doesn’t change anything about the way that our courts will handle domestic partnerships. Even before Perry, California already recognized all spousal and spousal-equivalent relationships of California residents for purpose of divorce. However, prior to Perry there was an issue about what marriages by same-sex couples could legally be designated as “marriages” under California law. After Prop 8 passed, the California Supreme Court upheld Prop 8 as prohibiting marriages between partners of the same sex in California, but the Court also upheld the validity of marriages legally entered into before Prop 8 passed in November 2008. In response to the California Supreme Court’s opinion, 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, but without 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 currently 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, but each one needs to be separately listed and the judgment of dissolution needs to explicitly dissolve each separate relationship. The earliest-entered relationship will be treated as the “date of marriage” for dissolution purposes, meaning the date that community property rights and entitlement to spousal support commence.
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. Now in light of the U.S. Supreme Court Windsor decision striking down Section 3 of the federal Defense of Marriage Act as unconstitutional, the same rules will unquestionably apply to same-sex couples who are married. 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, 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 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. 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 take jurisdiction to resolve property aspects of any California registered domestic partnerships upon separation, but custody and visitation disputes will need to be worked out in the child’s home state. Although AB 205 confers parental rights upon registered domestic partners just as if they were a married couple, 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 strongly encourage same-sex parents to fully protect the legal relationships 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.courts.ca.gov. If you are able to work out your separation by yourselves, we offer you our sincere congratulations. 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 couples. 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.
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.