The Wald Law Group | Divorce & Dissolution

DOMESTIC PARTNERSHIP DIVORCE & DISSOLUTION FAQ
by Paul W. Thorndal, Attorney at Law
© October 2007

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 available from the business or local government. 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 California Secretary of State available at www.ss.ca.gov. 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 $4,000, excluding automobile loans; (6) the total fair market value of community property assets, excluding encumbrances and automobiles, but including deferred compensation and retirement plans, is less than $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: 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: 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: I have been hearing a lot about "collaborative divorce." What is "collaborative divorce," and how is it different from mediation?

A: Mediation is a "triangular" model of Alternative Dispute Resolution (ADR). In the mediation model, the parties meet with a neutral third person - the mediator - whose role is to help the parties reach a negotiated resolution of their dispute. The Collaborative model shifts from a "triangular" model to a model where each party brings their attorney directly into the negotiation process. The collaborative process also often includes "divorce coaches" who work closely with the parties to address their psychological and emotional needs during the divorce, and with financial and child development specialists, as needed, who work with the parties and their attorneys to craft practical and realistic solutions to the problems facing the divorcing couple and their family. The goal is for the couple to move toward a genuine resolution of their issues that allows each of them to move forward in their lives without being disabled by the divorce process.

Collaboration can be preferable to mediation in higher conflict cases, where more outside input and advocacy is needed to reach negotiated resolution; and in cases where communication has broken down between the parties to a point where mediation is unlikely to assist them. Collaboration also works well where there is a significant power imbalance between the parties that creates an uneven playing field that can be neutralized by skilled advocates on each side of the dispute.

Q: I have heard that California requires that registered domestic partners must file state tax returns using forms (and tax calculations) for "married couples." Is this true, and does it remain true if we are in the process of dissolving our partnership?

A: California is implementing a new rule which will require that registered domestic partners file state taxes using either "joint" or "married filing separate" state tax returns. This new rule will become effective for tax year 2007 (returns due April 15, 2008). For couples in the process of dissolving their partnerships, these rules will apply unless the dissolution judgment is final by December 31, 2007. Since a judgment of dissolution cannot be entered until six months after service of the petition, couples contemplating a dissolution should move quickly to avoid application of these new rules.

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.

Paul W. Thorndal, Attorney at Law
The Wald Law Group, PC
One Bush Street, Suite 1150
San Francisco, CA 94104
(415) 399-1840 direct
(415) 648-3097 main
(415) 648-3098 fax
paul@waldlaw.net