Heath-Newton LLP Counselors at Law

Bay Area Family Law Blog

Dec
27
2011

Domestic Partnership Equality Act Adds to Domestic Partnership Rights

California’s domestic partnership laws do not provide all of the rights of marriage. On October 9, 2011 the legislature and Governor Brown corrected some of that inequity by passing the Domestic Partnership Equality Act. Effective next January, the law will provide for several rights already existing in marriage.

First, and arguably most importantly, the law will allow same-sex couples married in California but living in states that do not recognize their marriage, to get divorced in California. Previously, these couples were stuck in limbo – unable to get divorced, and having a marriage only recognized in certain states.

This provision of the law corrects a serious conundrum for same-sex couples. The Federal Defense of Marriage Act (DOMA) allows states to not recognize same-sex marriages consummated in another state. Many people hoping to marry their same-sex partner go to one of the few places allowing it, but then are shocked to see that they cannot get divorced in their home state when the marriage dissolves. Same-sex marriage then becomes a prison instead of a liberating institution. Only six states, Washington D.C. and two tribal nations have marriage equality. 30 states ban same-sex marriage by constitutional amendment and 11 states ban it by statute alone.

This provision of the Domestic Partnership Equality Act immediately applies to marriages entered into before Proposition 8 passed and will apply to future marriages if Proposition 8 is ruled unconstitutional by the courts.

Second, under the new law, couples will no longer have to share a common residence in order to qualify as domestic partners. This is already the case with marriages.

Third, the law further allows people under the age of 18 to become domestic partners, though they would need a court order and the consent of their parent or guardian.

Finally, The Domestic Partnership Equality Act allows domestic partners to enter into a confidential domestic partnership. The paperwork they file with the Secretary of State would remain sealed unless opened by Court order. This advancement brings domestic partnership closer in alignment with marriage, which allows for confidential marriages.

The domestic partnership laws are complex and still differ significantly from marriage. Additionally, because federal policy differs from state policy, domestic partners also have distinct challenges dealing with the federal government. Many couples desiring to enter into a domestic partnership attempt to smooth out the wrinkles in domestic partnership with a prenuptial agreement. A couple wanting to enter into a domestic partnership is wise to consult with an experienced family law attorney.

Guide to California Domestic Partnerships and Same-Sex Marriages eBook Download

Categories: Divorce, Domestic Partnership, LGBT

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