California family law: The domestic partnership

As complex as the legal path of the attempt to legalize same-sex marriage has been in California, a different option some have chosen is that of the California domestic partnership, an established, legal alternative to marriage for same-sex and a narrow group of opposite-sex couples.

The basics of California domestic partnership law

California law defines domestic partners as "two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring," and further provides that a domestic partnership is legally established in the state by the filing of a "Declaration of Domestic Partnership" with the Secretary of State. A confidential declaration may also be filed that is not publicly accessible.

To qualify to enter into a California domestic partnership, the couple must meet the following criteria:

  • Neither partner may be married to or in an existing domestic partnership with someone else.
  • The partners must not be relatives that would otherwise be prohibited from marrying in the state.
  • Both must be at least 18, except that complex provisions allow some minors to enter into domestic partnerships under certain circumstances.
  • For opposite-sex couples, at least one must be older than 62.
  • Both must have the capacity to consent to the partnership.

California law provides sweeping, expansive legal rights to couples in registered domestic partnerships. The statute describing rights and obligations begins: "Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law ... as are granted to and imposed upon spouses."

The law goes on to specify that former domestic partners are to be treated under the law like ex-spouses, and that surviving domestic partners are to be legally viewed like widows or widowers.

Further, nondiscrimination rights of spouses also belong to registered partners. If either partner has a child, the other partner has the same "rights and obligations" as a spouse would have during the partnership, or as an ex-partner after partnership termination or as a surviving partner.

Domestic partners may enter into valid pre-partnership agreements that are governed by the state's laws on premarital agreements.

Terminating a California domestic partnership

If the domestic partnership breaks down and both partners wish to terminate the legal arrangement, in particular situations the termination may be accomplished by filing a "Notice of Termination of Domestic Partnership" with the Secretary of State. However, there are specific conditions that are required for this method of termination. The requirements include: the partnership cannot be more than five years old; no children of the relationship; no more than $6,000 in community property debt; no issues of support; and assets of no more than $40,000.

Otherwise, a domestic partnership is terminated by either partner filing for its dissolution or nullity in state court, and the state laws applying to divorces apply to such domestic partnership filings. In addition, the court may grant a legal separation of domestic partners.

Consult an experienced California family lawyer

This article has only scratched the surface of the complexity that is California domestic partnership law. Anyone contemplating entering into a domestic partnership who may need advice about whether to negotiate a pre-partnership agreement or who has questions about potential rights and obligations; or any domestic partner considering terminating the partnership or separating from his or her partner, should sit down with a California family lawyer with specific experience in domestic partnership law for thorough, informed advice and representation.

The attorney can also provide advice about related tax matters. For California income tax purposes, the tax rules for domestic partners are the same as they are for spouses. However, the federal income tax rules are not the same. Understanding these differences is critical in understanding the income tax implications of entering into a registered domestic partnership or of terminating one.