John Spurgeon & Associates
California Family Law Blog

The legal recognition of same-sex relationships has been a topic of fervent discussion across the nation, especially in California in recent years. The California Supreme Court’s decision in In Re Marriage Cases (2008) 43 Cal. 4th 757 (effectively legalizing same-sex marriage), the approval by California voters of Proposition 8 (effectively overturning Marriage Cases), and the high court’s subsequent upholding of Proposition 8 as constitutional in Straus v. Horton (2009) 46 Cal. 4th 364 has intensified the debate. Under current law, California does not recognize same-sex marriages, regardless of where performed, except for the approximately 18,000 such marriages performed between the ruling in Marriage Cases and the passage of Proposition 8. Regardless of how the courts, voters, or legislature respond to the ongoing same-sex marriage debate, a registered “domestic partnership” remains an option for nonmarital cohabitants, many of them same-sex couples.

The Domestic Partner Rights and Responsibilities Act of 2003 (“DPA”) took effect on January 1, 2005 and retroactively applies to domestic partnerships entered into prior to that date. The DPA grants registered domestic partners most of the same rights, protections, benefits, obligations and responsibilities as spouses under California law. This includes community property rights (such as the joint-title presumption, rights of reimbursement, etc.), joint and several liability for debts, right to seek financial support following dissolution, and other rights and duties as between partners concerning ownership of property. The DPA also explicitly states that former “domestic partners” have the same rights as former “spouses”, and surviving “domestic partners” have the same rights as widows or widowers. Furthermore, the rights and obligations with respect to a child of either domestic partner shall be the same as those of spouses under the Family Code. This means custody, visitation, and child support obligations of a non-biological parent who is/was in a registered domestic partnership with the biological parent of a minor child will turn on whether they are a “parent” under the Uniform Parentage Act. However, it is important to note that some superior courts in California have been reluctant to give domestic partners certain Family Code rights not expressly conferred by the Family Code (exp. the putative spouse doctrine, or application of Family Code section 4337). Furthermore, since the federal government does not recognize same-sex unions in any form, a multitude of rights do not attach to registered domestic partnerships.

By way of example of some of the above principles, say a same-sex couple (A and B) entered into a domestic partnership in California in 2002. “A” earns $60,000 per year, and “B” earns $20,000 per year at their respective jobs. That same year, after the date of registration, they purchase a house and “A” uses $25,000 of funds he earned prior to the date of registration as a down payment on the house. “A” and “B” initially take title to the house as joint tenants. In 2009, “A” files for dissolution of the domestic partnership. Under the DPA, and thus the community property laws here in California, “A” is likely entitled to reimbursement of his $25,000 down payment on the house, the house is likely community property because of the joint-title presumption, and “B” may be able to receive partner support from “A” considering the apparent income disparity. Thus, under California law, dissolution of a registered domestic partnership may be similar to dissolution of a marriage.

While the debate regarding same-sex unions will undoubtedly rage on, registered domestic partnerships and the DPA remain intact here in California. For further information regarding rights and obligations of, entering into or dissolving a registered domestic partnership, please contact our office for a consultation.

John Spurgeon – Family law attorney

626 440 9518