Divorce/Dissolution and Domestic Partnership Law

DIVORCE/DISSOLUTION 

California has a “no-fault” divorce system, which means that a dissolution can be granted if the court finds “irreconcilable differences” as the cause of the divorce. A requirement to dissolution is that one spouse must be a resident of California for 6 continuous months and of the county for a continuous 3-months before filing the Petition.

Dissolution takes place after six months and a day have passed since the Summons and Petition have effectively been served in the Respondent. Generally, one spouse requests temporary court orders by filing for an Order to Show Cause hearing.

Discovery is then engaged in. During discovery, the parties exchange documents and information that is relevant to the case. A Preliminary Declaration of Disclosure is one aspect of discovery. This document is a court form in which each party is required to list the community and separate property of the spouses. 

Following discovery, the parties and their attorneys will often attempt to settle the case without incurring the expenses of trial. If the case is agreed upon at this stage, a Marital Settlement Agreement will be prepared by an attorney. This agreement will have all the essential terms that the parties agreed on. The agreement is a contract that is signed by the parties and their counsel. 

If a settlement is not reached then the parties attend a settlement conference, if the parties still can not reach a settlement, then a trial will likely take place. 

A Judgement of Dissolution of Marriage is prepared by one of the attorneys after either the parties sign the Marital Settlement Agreement or after the trial is concluded. The Judgement contains all the court’s orders. 

After the Judgement, and other court required documents are prepared, it is filed, and the court mails a Notice of Entry of Judgment to both attorneys.

DOMESTIC PARTNERSHIP LAW

A. Domestic partners are two adults sharing their lives in an intimate and committed 

        relationship of mutual caring.

B. Requirements to Become Domestic Partners:

        • Both persons must file a Declaration of Domestic Partnership with the Secretary of State

        • Both persons must have a common residence

        • Neither can be married to another or be a domestic partner with another, which marriage 

         or partnership has not been terminated, dissolved, or adjudged a nullity

        • The two persons are not related by blood in a way that would prevent them from being 

         married to each other in this state.

        • Both persons are at least 18 years of age

        • Either: a.) both persons are members of the same sex, or b.) one or both of the persons 

         meet the eligibility criteria under Title II of the SSA as defined in 42 USC Section 402(a) for 

         old-age insurance benefits or Title XVI of the SSA as defined in 42 USC Section 1381 for aged 

         individuals.

        • Both persons are capable of consenting to the domestic partnership.

C. Registered domestic partners shall have the same rights, protections, and benefits, and shall 

        be subject to the same responsibilities, obligations, and duties under law, whether they 

        derive from statutes, administrative regulations, court rules, government policies, common 

        law, or any other provisions or sources of law, as are granted to and imposed upon spouses.

D. Termination of Domestic Partnership:

        • Termination Without Filing a Proceeding for Dissolution only if: 

a. The Notice of Termination of Domestic Partnership is signed by both domestic 

                partners.

b. No children have been born or adopted into the relationship, either before or after 

                registration, and neither of the partners, to their knowledge, is pregnant.

c. The domestic partnership has been in existence no more than 5 years.

d. Neither party has an interest in real property wherever situated, with the exception 

               of the lease of a residence occupied by either party which satisfies the following 

               requirements:

i. The lease does not include an option to purchase

ii. The lease terminates within 1 year from the date of filing the Notice of 

                        Termination.

e. There are no unpaid obligations (excluding automobile obligations) exceeding 

               $4,000 incurred by either or both parties after registration of the domestic partnership.

f. The total fair market value of community property assets (excluding encumbrances 

               and automobiles) is less than $32,000 and neither party has separate assets (excluding 

               encumbrances and automobiles) exceeding $32,000.

g. The parties have executed an agreement setting forth the division of assets and the 

               assumption of liabilities of the community property, and have executed any documents, 

               title certificates, bills of sale, or other evidence of transfer necessary to effectuate the 

               agreement.

h. The parties waive any right to support by the other.

i. The parties have read and understand a brochure prepared by the Secretary of 

               State describing the requirements, nature, and effect of terminating a domestic 

               partnership.

j. Both parties desire the domestic partnership to be terminated.***Termination shall 

               be effective 6 months after the date of filing the Notice of Termination of Domestic 

               Partnership with the Secretary of State.

        • Termination Through a Court Dissolution Proceeding:

Termination after January 1, 2005, requires the partners to go through a court dissolution proceeding unless they meet the above requirements a.-j. 

        • Termination if No Longer Living in California: 

Domestic partners must agree to allow CA courts to have jurisdiction over dissolution and other proceedings regarding domestic partner status.

E. CA’s Recognition of Non-CA Same-Sex Unions: 

A legal union of two persons of the same sex, other than a marriage, that was validly formed in another jurisdiction, and that is substantially equivalent to a domestic partnership shall be recognized as a valid domestic partnership in this state regardless of whether it bears the name domestic partnership.

F. Treatment of Marital Property as Something Other Than Community:

        • For Couples Who Registered Before January 1, 2005:

a. You had until June 30, 2005, to draft and execute a pre-registration agreement if 

               you wanted your assets divided differently than they would be under CA community 

              property law.

b. The pre-registration agreement must meet the same substantive requirements that 

               a valid pre-marital agreement must meet to be enforceable.

c. If the agreement is not entered into by June 30, 2005, the parties may enter into a 

               post-registration agreement (having stricter requirements than a pre-registration 

               agreement) to divide assets in a manner different than they would be divided under CA 

               community property laws. 

        • For Couples Registering After January 1, 2005:

a. If a couple wants assets to be divided other than how CA community property law 

               will divide it, they must enter into any pre-registration agreement before registering as 

               domestic partners.

b. If the couple does not enter into a pre-registration agreement they must enter into 

               a post-registration agreement if they want their assets to be divided in a manner other 

               than CA’s community property laws would divide the assets.

        • Inability to Resolve Matters Before June 30, 2005:

                a.     Terminate your domestic partnership, enter into a pre-registration agreement 

               before re-registering, and re-register.

G. Children and Parentage

     • A child born to registered domestic partners will be considered the legal child of both 

      partners without regard to either partner’s biological relation to the child.

      • Inclusion on the Child’s Birth Certificate:

a. Lesbians using artificial insemination can both be included on the child’s original 

               birth certificate.

b. Gay men using a surrogate must obtain a court judgment of parentage to both be 

               included on the birth certificate. To obtain a court judgment, complete an adoption or 

               obtain a judgment of parentage.

     • Adoptions + Second Parent Adoption: Available to all couples

a. The legal parent is not required to give up any of his rights to the child for his 

               partner to adopt

b. More costly

c. More invasive home studies

d. More time to complete.

     • Step-parent/Domestic Partner Adoption: Available to registered domestic partners 

     only

a. The legal parent is not required to give up any of his rights to the child for his 

               partner to adopt

b. Easier because the child is presumed to be residing in the home and the person 

               chosen to adopt has been chosen by a fit, custodial parent

H. Be Cautious About Registering as Domestic Partners . . .

        • Where One Partner is not a US Citizen: the federal government will not recognize the 

        partnership as validating the non-citizen’s presence in the US.

        • Where One or Both are Receiving Federal Benefits: the federal government will not extend 

        benefits to a partner of a domestic partnership and benefits may be terminated

        • Where One or Both are in the Military. 

I.      Spousal Support

        • Tax treatment will likely be different for payor and payee.

a. Payor: not deductible

b. Payee: considered income

        • The court must consider the tax implications of the award.

        • Will support be calculated from the beginning of the relationship or the date of 

         registration?

        • The right to collect spousal support will likely be terminated upon entering into a new 

        domestic partnership.

J. Considerations in Determining the Validity of Pre-2005 Written Agreements

        • Was it written before or after registration?

        • Was it written before or after the 2003 changes in the law?

        • Was each party represented by separate counsel?

        • Does the agreement look like a typical pre-marital agreement?

        • Was the document created and executed in contemplation of registration as domestic 

        partners?

K. Division of Federally Held and Federally Regulated Assets

        • Federally Held Assets: unknown, but the Defense of Marriage Act will likely have an 

        adverse impact on dividing these assets due to the Supremacy Clause.

Suggestion: let employee partner keep pension and offset the remaining assets to non-

        employee spouse; some courts will not permit this.

        • Federally Regulated Assets:

       a. ERISA pensions: preempts state law;

       b. ERISA and IRA: Suggestion: treat like employee stock options; offset to the non-

               employee spouse

L. Employment Benefits

        • Public and Private Employers Must Provide Domestic Partner Employees With:

a. paid leave to care for either a seriously ill domestic partner or a partner’s child;

b. use of paid sick leave (if provided) to care for a sick domestic partner or a partner’s 

               child;

c. paid leave in connection with childbirth, adoption or placement of a child in foster 

               care;

d. the right to collect unemployment benefits if a partner must quit a job due to 

               relocation/employment of his domestic partner.

        • Public Employers Must Provide Domestic Partner Employees With:

a. health insurance benefits for the non-employee partner;

b. in the event of the employee’s death, eligibility for continued health insurance for 

               an enrolled surviving domestic partner and the deceased’s children.

        • New Benefits Public and Private Employers Will Likely be Required to Provide:

a. health and welfare benefits to the same extent they are provided to spouses;

b. the right to take extended unpaid leave to care for a domestic partner;

c. moving expenses, membership, membership discounts, travel benefits, and any 

                other non-ERISA benefit that is currently offered to spouses;

d. the same rights concerning non-discrimination as provided to spouses.

        • New Benefits Public Employers Will Likely be Required to Provide:

a. public retirement plans and survivor benefits equivalent to those provided spouses;

b. state government hiring preference for surviving domestic partners of veterans;