Creating a Domestic Partnership

Domestic Partnership Attorneys in San Diego

If you are thinking of forming a domestic partnership, Minella Law Group can help you. We handle both the basic filing of a Declaration of Domestic Partnership with the California Secretary of State, and the equally important, but more complicated, preparation of a Domestic Partnership Agreement that is specific to your situation.

While the publicly filed Declaration provides you with the financial and legal advantages of a domestic partnership, the private Agreement provides a detailed outline of how you have agreed to manage your assets and debts, your property, and any shared business holdings. The agreement provides you both with legal protections should you ever decide to end your relationship; it can also help you avoid the effect of certain domestic partnership laws that can be disadvantageous to some couples.

In situations where the disadvantages of filing a Domestic Partnership are serious and cannot be avoided by the Agreement, our attorneys can, as an alternative, draft a “Cohabitation Agreement” and prepare other legal documents that together will help protect your relationship and provide you with some of the legal rights you would otherwise have automatically as the result of a filed Declaration of Domestic Partnership.

In preparing an agreement of either type, we always work to protect the financial and legal well-being of both partners. Where any potential conflict of interest exists, we’ll advise you so that one of you can obtain separate counsel.

Our goal is to make sure that your domestic partnership or cohabitation agreement is legally strong, supportive of the needs and concerns of both partners, and drafted to minimize disputes and protect both partners should you ever decide to dissolve the partnership. We can provide you with the understanding, experience, and tactful negotiation skills essential to preparing a sound domestic partnership agreement, while helping you understand all of your rights, options, and alternatives.

Requirements for Forming a Domestic Partnership

California law says that “domestic partners” are “two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” However, there are certain legal requirements that you must meet before you are eligible to form a domestic partnership. We can quickly help you determine whether you are qualified.
The law permits a domestic partnership to be formed between two people when:

  • Both of you share a common residence
  • Both of you are age 18 or older and capable of consenting to the domestic partnership
  • Neither person is married or in a domestic partnership with someone else. If you have been in a previous domestic partnership, we’ll make sure you can properly establish a new domestic partnership.
  • You can’t be related by blood to a degree that would prevent you from getting legally married in California
  • Both of you must be members of the same sex, unless one or both of you is over the age of 62 and eligible for certain social security benefits

Benefits of a Domestic Partnership

Forming a domestic partnership can offer lifelong benefits. We’ll go over all of the benefits and protections with you at the time we draft your Domestic Partnership Agreement. These legal protections include:

Rights relating to family formation and children:

  1. The right to take your partner’s surname
  2. Right to use the same adoption procedures used by stepparents
  3. Presumption that both domestic partners are the parents of children born during the registered domestic partnership
  4. Parental rights and obligations, including the right to request child custody, visitation, and support

Health care rights:

  1. Hospital visitation rights between partners, and the right to make medical care decisions for your partner in certain situations
  2. When a domestic partner becomes incapacitated, the right to be appointed conservator in order to make legal and financial decisions
  3. Employers must offer health insurance for domestic partners whenever it offers coverage for employee’s spouses
  4. Employers must offer paid sick leave to care for your partner or your partner’s child whenever it offers that to spouses
  5. Although not legally mandated, some employers provide benefits to domestic partners that are not offered to persons who are merely cohabiting. These can include survivor benefits, medical/vision/dental coverage, accidental death, and dependent life insurance.

Property and income rights:

  1. California community property rights exist between registered domestic partners, meaning that both partners jointly own all property acquired during the existence of the domestic partnership (except for gifts and inheritance), unless the Domestic Partnership Agreement has made a different provision.
  2. Eligibility for State of California unemployment benefits for relocation when moving to accommodate his or her partner’s job
  3. Property tax benefits upon the transfer of real property between you and your partner
  4. Insurance companies who offer automobile coverage for California spouses must also offer them for California domestic partners

Death and inheritance rights:

  1. Rights to inherit California property from a deceased partner, to make his or her funeral arrangements, and to administer the deceased partner’s estate. Inheritance rights to property located other states can be provided by a will and living trust, which we have extensive experience in preparing
  2. Right to sue for the wrongful death of a domestic partner and for infliction of emotional distress resulting from the death.

Legal protections in other states. California legal protections for domestic partners continue to exist when you move or travel to another state that recognizes domestic partnerships.

Other Considerations and Potential Disadvantages of a Domestic Partnership

Some additional considerations, which may be positive or negative depending on your situation, include:

  1. Domestic partners are responsible for each others’ debts, usually including debts existing before the domestic partnership was formed.
  2. Registered domestic partners owe each other the duty of care and loyalty in managing property and investments, and have potential liability to the other for any violation of the duties
  3. Ending a registered domestic partnership requires a formal legal proceeding in family law court, similar to a divorce
  4. Potential legal responsibility to pay partner support (alimony) if the partnership is ended
  5. Possible loss of public benefits when joint income is used to determine eligibility, or because of uncertainty in federal laws
  6. If you or your partner is a foreign national, registering your domestic partnership may risk a foreign partner’s visa status
  7. If you or your partner are members of the military, your careers may be jeopardized by registering as domestic partners
  8. Registered domestic partners file joint state income tax returns, which may result in higher taxes. Because domestic partnerships are not recognized by federal law, separate federal returns must be filed, which makes tax planning and tax return preparation more complicated.

We’ll review your situation insofar as each of these considerations may affect you, and advise you on which drawbacks we can help you avoid or minimize in our preparation of your Domestic Partnership Agreement. Where appropriate, we can also provide you with experienced advice on asset protection techniques, retirement planning, and estate planning.

Cohabitation Agreement as an Alternative to Domestic Partnership

If you and your partner are not eligible for domestic partnership status, or the disadvantages outweigh the advantages in your situation, we can offer you an alternative, a situation-specific “cohabitation agreement.” While a cohabitation agreement offers fewer legal protections than a registered domestic partnership, we can help create a comprehensive framework to meet many of the same needs, protect your rights, and minimize the potential for disputes if the relationship ends.
Some of the issues cohabitation agreements typically cover are:

  • How you will share and manage assets, such as your residence
  • What property or income will be kept separate
  • What will happen to assets you co-mingle (mix together)
  • How you will divide responsibility for debts and living expense
  • How you will handle a transfer of jointly owned property
  • How property will be divided if your relationship ends
  • Whether post-separation support, similar to alimony, will be provided by one partner to another
Kathy MinellaCreating a Domestic Partnership