The New World of Same-Sex Marriage in California: Is Marriage and/or Domestic Partnership Right For You?

As of January 2005, state-registered domestic partners in California were granted all the rights and obligations of marriage – under state law. Then, in June of 2008, lesbian and gay couples were allowed to legally marry in California – regardless of where they resided. The California Supreme Court had issued a landmark decision, striking down the state ban on same-sex marriage as unconstitutional, and refusing to postpone the implementation of their decision. This was a powerful victory for our community – but at the same time, it raised many complex legal questions that every lesbian and gay couple had to consider.

Then, to our great dismay, California’s voters passed a constitutional ballot initiative in November 2008, which re-instituted the ban on same-sex marriage. Supporters of the right to marry immediately filed a petition with the California Supreme Court, arguing that because the Court had already ruled that we had a constitutional right to marry, this initiative was itself invalid. California law already had established that an initiative that would fundamentally change the constitution can only be put on the ballot by the legislature, which didn’t happen here.

Unfortunately, in May 2009 the California Supreme Court upheld Proposition 8, and the marriage door was closed - until a subsequent lawsuit was filed in federal court.  Eventually, after five years of litigation the United States Supreme Court ruled in June 2013 that the proponents of Prop 8 lacked standing to challenge the federal trial court's invalidation of Prop 8 as unconstitutional.  Lesbian and gay couples were allowed to get married once again in California, just a few days later.   On the same day the Supreme Court also ruled that the federal Defense of Marriage Act (DOMA) was unconstitutional, and as a result of this decision, all of the federal benefits of marriage extend to couples who are legally married and living in recognition states.  It remains uncertain whether or not state-registered domestic partners in California will be treated as spouses for federal purposes. 

Because of the many legal and financial uncertainties surrounding same-sex marriage, especially regarding the present lack of interstate recognition, couples are strongly encouraged to consult with an attorney prior to registering as domestic partners or marrying in California. Some attorneys even recommend that couples that marry should also state-register as domestic partners, so that they are protected by the rights and obligations of marriage even if their marriage is not recognized.

Here is a summary of the most important issues couples should consider in making their decision; for further information, check out the websites of the National Center for Lesbian Rights (www.nclrights.org), Lambda Legal Defense (www.lambdalegal.org), or Nolo Press (www.Nolo.com). If you have other questions, especially if you reside outside of California, it makes sense to consult with a local attorney before making any marriage decisions. A comprehensive review of these issues can be found in my book, Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnerships & Civil Unions (Nolo Press, 2011).

What are the major implications of registering as domestic partners in California?

If you are residents of California, all state-imposed rights and responsibilities of marriage will apply to you, effective as of the date of your registration. If you are already state-registered as domestic partners, your “date of marriage” is your date of registration, not any later marriage date. These rights and responsibilities include joint responsibility for many debts, sharing of income earned after your registration or marriage, potential liability for spousal support, and in most instances, processing a dissolution through the family law courts. A summary of these rights and responsibilities is included at the end of this page.

If you are not residents of California, or if you relocate out of California, you may or may not be subject to the state rules of marriage – that issue is unresolved in most states. Most of the New England states and Iowa will honor your marriage, but the rules in the other states are not yet resolved. And, if your relationship breaks up, you may need to move to California for at least six months in order to file a dissolution petition, unless you live in one of the marriage of domestic partnership recognition states. Because it may be uncertain for some time as to whether your marriage is or is not recognized in your state, you should give serious consideration as to whether or not you want to take on the risks of this uncertainty.  While nothing is certain at this time, most likely you will not receive any federal benefits as a state-registered domestic partner, because technically you are not married. 

What is the effect of the now-invalidated constitutional amendment to ban gay marriage?

Now that Prop 8 has been declared unconstitutional, you are free to get married in California, so long as you are otherwise eligible for marriage.  

If you are already registered as domestic partners, can you get married now?

There is no prohibition against marrying in California - or anywhere else - if you are state-registered domestic partners, as long as you are marrying your present partner! Marrying your partner will not significantly alter your legal rights and responsibilities – you are already subject to the state laws of marriage, and the federal government will recognize your marriage, even if they wouldn't recognize your domestic partnership registration. But marrying now could create confusion as to your “date of marriage,” and you probably should consult with an attorney about that issue.

What does it mean to be married and have your marriage recognized by the federal government?

If you are married and live in a recognition state- which now includes California - you will be treated as married for all purposes under federal law.  That means you must declare your filing status for tax returns as married (though you can still file your returns separately), you will be able to benefit from the immigration preferences for spouses of citizens, and you will receive all of the Social Security and retirement benefits extended to married couples.  If one of you is a federal employee your spouse will receive benefits that every straight spouse receives.  Keep in mind, however, that being married sometimes comes with a cost - such as higher income taxes for some couples, or disqualification from certain federal benefits based upon the income or assets of your spouse. 

What if we got married in Canada or anywhere in the United States? Is our marriage now recognized in California?

Yes, it is treated just like any heterosexual marriage -- you have all the rights and duties of marriage, including the duty to process a dissolution through the court system if you break up. 

What are the basic rules of being married or domestically partnered in California?

1.  All the California marital rules about assets and property apply to married or registered couples, as of the date of their registration or marriage (whichever happened earlier!).

a.  All income and all savings accumulated from earned income are presumed to be equally owned (community property), regardless of titling of deed, asset, or account; a written agreement is generally required to transmute property from community to separate (except for down payment on a residence or other traceable contributions to the acquisition or improvement of a joint asset or property)

b.  Community property rule applies to savings accounts, stock options, and all financial accounts, real property acquired, businesses, and IRA/pension benefits

c.  Pre-registration (or pre-marital) assets and gifts or inheritances are presumed to be separately owned, with complex statutory rules for allocating mixed assets/debts

d.  Pre- and post-registration/marital debts likely to be joint debts, regardless of debtor

e.  Lesser-earning partner is eligible for post-separation spousal support as determined by Family Law Court judge, based upon statutory factors

f.  Fiduciary duty is imposed on partners/spouses, with potential liability for mis-management or wrongful transfer of community property assets

2.  Dissolutions require judicial process, except for registered couples with no disputes, few assets, no real property, and no children

a.  Statutory procedures for filing of dissolution petition, except for summary termination of registered partners through Secretary of State (if eligible)

b.  Family Court handles adjudication of property and debt disputes

c.  Family Court handles adjudication of post-separation support claims (both temporary and permanent support)

d.  For couples with pre-registration/marital assets/debts held in separate names: separate lawsuit possible under non-marital rules, possibly consolidated with Family Law process

3.  Registering or marrying can raise many complex and new legal questions.

For couples registered before January 2005, the "date of marriage" is the registration date -- not January 1, 2005, though there may be challenges to retroactivity provisions.

Will any federal tax benefits and burdens apply? YES if you are married -- but probably NO if you are state-registered as a domestic partner. 

Will couples that registered with their partner out-of-state (i.e. Vermont Civil Unions) be covered automatically if they reside in California? YES — but not those who registered with local registries only.

Will partners registered with or married to someone else out-of-state (i.e. Vermont Civil Unions) need to terminate that registration/marriage before registering or marrying with another partner as DP in California? YES — and they will be able to do so in California courts!

Will California's marital rules be applied to registered or married couples that live out-of-state, or couples who live in California and then relocate? Outcome is uncertain at this time - and it depends on the law of the state you are living in.

Will a Canadian or out-of-state marriage be valid in California, either for purposes of termination or awarding assets or spousal support?  Yes!

Four Options for California Couples

1.  Remain unregistered and unmarried, and organize all property and debt issues by title and account name, without executing any formal asset or property agreement

2.  Remain unregistered and unmarried, but execute property co-ownership and/or cohabitation agreement to address assets, debts, and post-separation support

3.  Register (or remain registered) or get married – or to be practical, both -- and abide by all community property rules, generally without the need for an agreement (though some couples may still need a written agreement to address certain pre-registration/marital assets and debts, or a transmutation agreement for specific assets)

4.  Register (or remain registered) or get married, and execute registration/marital agreement to modify the community property rules regarding assets and debts, and to limit (to some degree) obligations for post-separation support

Making the Decision

FIRST, decide whether registration or marriage is vital for your relationship (i.e. insurance or other private benefits, step-parent adoption procedures, property tax implications, etc.) and confirm whether marriage will be possible given the current legal uncertainties. 

SECOND, decide whether registration/marriage is possibly harmful to your situation (i.e. disqualification from benefits, exposure to partner's debt, privacy issues).

THIRD, if registration and/or marriage is neither vital nor harmful, decide whether you prefer registration and/or marriage (with or without private agreements limiting the community rules) or non-registration/unmarried (with private agreements providing for property and debt protections.

 

You now have the freedom to choose your legal status -- cohabitants, domestic partners, or married spouses.  The consequences of your choice can be significant, especially in the event of a dissolution or upon the death of either partner.  Learn the applicable rules, and make the best choice for your particular circumstances.  Remember that the right to marry is not the duty to marry!