Domestic Partnerships

Domestic partnerships continue to provide a valuable option for persons living together to obtain many of the legal benefits enjoyed by married couples, but without marriage. A domestic partnership (DP) may provide financial benefits, particularly for seniors, in specific situations. Many states, counties and cities began enacting laws in the 1980's that allowed creation of domestic partnerships as legally recognized relationships. These laws primarily benefitted same-sex couples who were, at the time, denied the legal right to marry.

When the U.S. Supreme Court declared that same-sex couples had the constitutional right to marry, the need for domestic partnership laws dwindled. Many employers stopped providing benefits to domestic partners. In some states, such as Washington, most domestic partnerships were automatically converted to marriages. However, Washington is among the few states that continues to extend statewide benefits to domestic partners. Other states include New Jersey, Nevada, Hawaii, Maine, Oregon and Wisconsin.

Even though the majority of states do not provide benefits to domestic partnerships, dozens of local municipalities in those states do allow couples to register as domestic partners and to obtain local benefits based on that legally recognized status. For example, the state of Arizona does not recognize domestic partnerships but the cities of Phoenix and Tucson do extend benefits to partners.

The specific requirements for creating a DP vary by jurisdiction. New Jersey's DP law provides an excellent example. Applicants may be same-sex or opposite-sex couples who are living together. Both parties must be at least 62 years old. The parties cannot be married or related through blood beyond a certain point. They must declare they are in a committed relationship of mutual caring and are jointly responsible for each other's welfare and basic living expenses.

In New Jersey, each party must file an affidavit of domestic partnership with the local registrar of any municipality. In return, the registrar provides the couple with a Certificate of Domestic Partnership stating the date on which the partnership was established. The certificate is recorded in both the local and state registrar's files.

The age requirement is where variations by jurisdiction are often likely to occur. For example, Washington requires both applicants be at least 18 years old, but only one must be at least 62 years of age. Wisconsin and Oregon simply require applicants to be at least 18 years old. The ability to enter into a DP in some jurisdictions is limited to older persons because remarriage for seniors often results in a loss or reduction of Social Security or pension benefits.

In general, domestic partners are given some, but not all, of the rights enjoyed by married couples. Domestic partners typically gain the ability to make health care decisions for the other partner and a right to obtain family or bereavement leave. Visitation rights normally restricted to family members in certain situations, such as in a hospital, are extended to partners as is the ability to be covered under a family health insurance policy.

Domestic partners may also be entitled to workers' compensation benefits or life insurance proceeds following the death of the other partner. Partners generally have the same right to inherit property from each other just as married spouses are able to do when one dies without leaving a will. New Jersey law gives domestic partners the right to make funeral arrangements following the death of a partner. Each may claim the other as a dependent on state income tax returns.

Partners can create mutual obligations toward each other above and beyond those outlined in law by drafting a written contract which both sign. This agreement might detail how property and debts will be divided or whether alimony will be paid in the event the partnership is dissolved.

Drawbacks to creating a partnership may include reduced eligibility for some government income-based benefits. For example, a single person applying for general assistance, food stamps or Medicaid through a state program usually only discloses personal income. However, because partners legally agree to be jointly responsible for each other, that same person in a DP may have to disclose total income of the household. Joint income totals may reduce or eliminate the possibility of obtaining assistance.

That drawback does not exists for federal benefits such as Social Security or Medicare because the federal government does not recognize domestic partnerships. A widowed spouse may receive Social Security benefits based on the work history of the deceased spouse. That benefit ends if the spouse remarries. However, if the spouse enters into a DP rather than a marriage, the Social Security benefit continues uninterrupted.

If domestic partners plan to relocate from the area in which the DP was established, they should investigate whether the partnership will be legally recognized in the new location. For example, New Jersey recognizes DPs validly created in other states, but a New Jersey DP will not be recognized as legal in Idaho, Kansas or in many other states.

Being in a domestic partnership does not prevent the parties from marrying each other. If they marry, the legal status of a DP usually ends. The process to terminate a DP other than by marriage varies by jurisdiction. In some places, the simple filing of a form will dissolve the legal relationship. In other locales, the process is drawn out and similar to getting a divorce. A court may often be required to decide issues related to child custody and support, division of property and alimony.

Entry into what is hoped to be a long-term and mutually beneficial relationship, whether by marriage or domestic partnership, is a major life-changing event. Consultation with an experienced family law attorney is a wise precaution when considering establishment of a DP. Requirements to create a DP vary widely, and the potential effect on the ability to receive government program benefits should be thoroughly examined. Take the necessary time and steps to ensure that the future of both you and your partner will be protected. If you have any questions about domestic partnerships, call the Law Offices of Peter Van Aulen at (201) 845-7400 for a free initial consultation.