What is a Domestic Partnership?
A domestic partnership offers certain legal protection and benefits to unmarried couples who live together. Although the majority of domestic partnerships are between same-sex couples, it may be an option for heterosexual couples as well.
While some states only allow same-sex domestic partnership registration, others allow domestic partnership registration for both homosexual and heterosexual couples. A few states stipulate that one partner in an opposite-sex domestic partnership must be age 62 or older. Older couples may choose domestic partnership over marriage to avoid losing retirement or Social Security benefits received from a former spouse.
Similarities between marriage and domestic partnership
Both marriage and domestic partnerships are legal commitments to a relationship between two people. Like marriage, a domestic partnership is also considered a social declaration of commitment. When a marriage ends, it is called a divorce, however, when a domestic partnership ends, it is called termination rather than a divorce.
Domestic partners may also share some of the same benefits as married couples. These benefits can vary from state to state but may include:
- Shared health, dental or vision insurance coverage
- Family sick leave or bereavement leave
- Accident and life insurance
- Death benefits
- Housing rights or tuition reduction at colleges or universities
- Parental leave, when you or your partner has children
- Visitation rights between partners when one is hospitalized or incarcerated
Differences between domestic partnership and marriage
Unlike marriages, the federal government does not recognize domestic partnerships. This means you cannot claim your partner as a dependent on your tax return or receive their Social Security benefits. Although the waters might be a bit murky, many states, however, consider a domestic partnership the equivalent of marriage, which would allow one spouse to sponsor another. Therefore, same-sex couples who entered into a domestic partnership before they could legally marry may be able to sponsor each other.
Currently, surviving spouses receive a tax exemption when they inherit marital assets. Domestic partners must include their significant other in their will, and the inheritance is subject to taxes as well. Furthermore, spouses do not pay additional income tax when an employer pays for spousal health insurance benefits. When domestic partners receive the same benefit, it is considered taxable income.
Civil unions and reciprocal beneficiaries
A few states offer civil unions instead of domestic partnerships. The primary difference between civil unions and domestic partnerships is that civil unions are only available at the state level. Domestic partnerships can take place within a county or city, even in states that do not recognize them.
The state of Hawaii offers reciprocal beneficiary status in addition to civil unions. Reciprocal beneficiary agreements operate the same way as a domestic partnership, with three exceptions.
- The individuals in a reciprocal beneficiary agreement may be closely related.
- They do not have to live together.
- Both individuals must be legally prevented from marrying each other.
Recognizing domestic partnerships
Seven states and the District of Columbia recognize domestic partnerships. They include
In some states, domestic partnership recognition is largely symbolic. Others, like California, grant partners the same rights that married couples have under state law. Even if individual states do not extend domestic partnership benefits, smaller governments within the state may choose to do so. For instance, the city of New Orleans offers domestic partner benefits, although the state of Louisiana does not.
States that recognize civil unions
As of 2017 four states provide civil unions to both same-sex and opposite-sex couples: Colorado, Hawaii, Illinois, and New Jersey.
States without domestic partnerships
Twenty states do not recognize domestic partnerships:
States which do not recognize domestic partnerships
Although these states do not provide any benefits for domestic partners, all states must allow provisions for same-sex marriages following Obergefell v. Hodges.
Providing benefits to domestic partners
Although a state may not recognize domestic partnerships, companies are free to offer benefits to domestic partners and their dependents. They may allow employees to list a partner as a life insurance beneficiary, provide sick or bereavement leave or obtain health insurance coverage for a partner and other family members. Gay rights organizations such as the Human Rights Campaign recommend that employers provide benefits equal to those provided for married couples.
Employers may request proof that partners are in a committed relationship. The proof may be in one of the following forms.
- An employer- or insurer-defined partnership affidavit
- State or municipal, domestic partnership registration
- State civil union or marriage license
- Foreign-issued marriage license
Employers are not mandated to provide such benefits to domestic partners unless state law requires it. However, when an employer chooses to offer benefits of the same level to both married couples and domestic partners, could help companies reduce the risk of discrimination charges.
Registering as domestic partners
Most states, counties or cities that allow domestic partnerships have the same basic requirements. Both partners must agree that they are
- In a committed, intimate relationship with each other
- Of legal age and mental capacity to consent to the partnership
- Not blood relatives to the degree that state law prevents their marriage
- Freely entering the partnership
Both parties also need identification documents. These may include a driver’s license, social security card, proof of residence or other documentation that supports their ID and relationship status. Some states may require a waiting period if either partner is recently divorced or just dissolved a previous partnership.
The place of registration varies. For example, Nevada residents must contact the Secretary of State’s office to register. In counties or cities that offer domestic partnership registration, partners may need to contact the county clerk’s office or the city registrar. Ask an Expert if you need help determining where or how to register your partnership.
Adopting children in a domestic partnership
Same-sex adoptions can be difficult. Sometimes only one parent in a same-sex relationship may adopt the child. If the partnership dissolves, the second parent has no legal right to child custody. This can be devastating to both parents and child.
In states that offer the same benefits to registered partners and married couples, domestic partners may adopt their partner’s biological children. The procedure works much like a stepparent or second parent adoption. When the child is from a previous relationship, the estranged parent may have to sign over their rights before an adoption can take place. Talk to an Expert to find out what provisions apply when the child is conceived with the help of an anonymous egg or sperm donor.
Automatic legal parent status
In a marriage, both spouses automatically receive legal parent status when a child is born, regardless of the child’s parentage. The District of Columbia, Oregon, and New Jersey all offer the same automatic status to domestic partners or partners in a civil union.
Dissolving a domestic partnership
Terminating a domestic partnership can be challenging, particularly when the one state to another does not recognize the partnership. A couple pursuing partnership termination may have to return to the state where they filed the partnership to dissolve it. The laws governing termination vary by state and may outline a general procedure or a precise method, including a waiting period.
When a partnership involves joint property, debt or children, both partners may need to go to family court to complete the termination. If the partnership agreement does not define how assets and child custody are divided, the court will determine the outcome.
Much like a marriage, property acquired before the domestic partnership is considered separate. This also applies to property that was inherited by or gifted to one partner during the partnership. The separate property does not get divided and gets returned to the owner.
Any remaining property is divided one of three ways. First, the property may be divided unequally, depending on the equity each partner has in it. Second, the court can split the property equally. Finally, the court may consider the partners as joint tenants and divide the property accordingly.
Parties in a domestic partnership may, however, enter a contract, similar to a prenuptial agreement, at the time of entering the partnership to decide how assets will be divided in the event of a termination.
Sometimes the court will order one partner to pay maintenance support to help provide the second partner with financial support. However this is not automatic in a domestic partnership termination, but the court does consider several factors.
- Duration of the partnership
- Finances of both partners
- Time needed for the partner seeking maintenance to complete training or schooling
- Standard of living for both partners during the domestic partnership
- Health condition and age of the partner requesting support.
The court considers each maintenance request on a case-by-case basis. A partner who stayed home to raise children while the other partner furthered their career is more likely to receive support. The court also considers how much one partner’s standard of living will change without maintenance.
If the two parties cannot agree on child custody, the judge hearing the case will determine custody based on what she deems to be the best interest of the child(ren). The best interest factors typically include things like:
- What the child expresses as their preference
- The special needs of the child, if applicable, and how each parent addresses those needs
- Age of the child, as well as their sex
- Any past evidence of physical violence, mental or sexual abuse, or excessive discipline by a parent
- Other factors
Child support will be determined according to each state's law. Most states determine the amount based either on the combined incomes of the parents or based on the non-custodial parent's income.
How to terminate a domestic partnership
A domestic partnership automatically ends when one partner dies or marries. If child custody agreements, maintenance requests, or property division are not an issue, partners may not have to appear in court. They may be able to file a termination through the Secretary of State’s office in their state or the county clerk’s office. This option is more economical than taking the case to court. The exact procedure for termination depends on your state’s laws.
How to terminate a civil union
In light of Obergefell v. Hodges, many states stopped offering civil unions, as they are no longer a necessary alternative to marriage. However, couples in New Jersey, Illinois, Hawaii, and Colorado may still enter civil unions. To terminate a civil union, the spouses must divorce. Couples who entered into a civil union in Vermont prior to 2015 must go through a family law proceeding to dissolve the union. This procedure is also essentially the same as a divorce. The judge will divide marital property and determine child custody, child support, and maintenance as if the parties had married.
Deciding whether domestic partnership is right for you
You and your partner are the only people who can determine whether domestic partnership fits your relationship. The Supreme Court’s Obergefell v. Hodges decision in 2015 means that same-sex marriages are recognized in all states. This right should also extend to transgender couples, as is not relevant what gender is on a person's birth certificate. It is no longer necessary to enter into a civil union or domestic partnership as an alternative form of commitment.