Domestic Partnerships

Overview

This relatively new area of law confers expanded rights and responsibilities of registered domestic partners. In the Contra Costa, Alameda, Solano, and San Francisco counties, the Courts follow the rather technical and complicated new laws. In many ways, these expanded rights parallel the rights of married couples; however, in many respects they differ. These significant differences have been a point of contention during the last decade.

Individuals undergoing a termination of their domestic partnership are placed in a unique situation that has its own particular set of difficulties. It is important to retain counsel who is aware of the differences between federal and state law in this area and who is able to guide you through this difficult process.

Please contact us to discuss your case and to schedule a confidential consultation.

FAQ

Q: What are the differences between dissolution of marriage and dissolution of domestic partnerships?

A: The main difference is that while dissolutions of marriages have been going on for a long period of time, domestic partnership law is relatively new. Because of the differences between California State law and Federal law, there are still a number of uncertainties regarding property division, taxes, and custody issues. Couples who have a registered domestic partnership must dissolve their partnership in California, even if they both move out of the State or never lived in California. They are still under the six month residency requirement, which means that some domestic partners will need to file for a legal separation and later amend to a dissolution. Your attorney should have the skill and expertise needed to guide you through this tricky legal area.

Q: How does Federal law affect my domestic partnership?

A: It’s very important to remember that federal law does not recognize domestic partnerships. Domestic partners, for the most part, do not enjoy the thousand federal laws in which marital status is a factor, including rights under Social Security, Medicare, immigration law, veteran’s benefits and federal tax laws. Domestic partners also may not have the same rights as married persons once they cross beyond California’s borders. Additionally, Federal tax laws have not changed to recognize domestic partners.

Forms

All legal separations begin with two required forms:

  1. Petition (FL-103). This form is a request for a dissolution of domestic partnership. It’s extremely important because it outlines what the major issues are and what orders you are asking for with your domestic partnership dissolution.
  2. Summons (FL-110). This provides notice to the other party that you are requesting a dissolution of your domestic partnership. It advises the person that he or she must respond to your request for a divorce within 30 days and places certain restrictions on both you and the other side.

If you have minor children, you are also required to complete the following form:

  • Declaration Under Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA) (FL-105). This establishes your child(ren)’s residency for the past five years.

After filing for divorce, the next step is serving the other party. The other side must be personally served the documents by any adult other than you. After serving the initial paperwork, you must file a proof of service with the Court. FL-115 or FL-330. If your spouse is cooperating with the dissolution of domestic partnership process, you can also ask him or her to sign a Notice and Acknowledgment of Receipt, which meets the service requirements.

If you are responding after being served with dissolution of domestic partnership papers, you need to file a Response (FL-123), which allows to the Court to see your side of the story. If you have minor children, you are also required to complete your own Declaration Under Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA).

The second part of a dissolution of domestic partnership requires a full financial disclosure consisting of four additional forms.

  1. Income and Expense Declaration (FL-150). This form must be filed with the Court and is a listing of all of your earnings and average monthly expenses.
  2. Schedule of Assets and Debts (FL-142). This lists everything you own and everything you owe.
  3. Declaration of Disclosure (FL-140). By signing this form, you declare that you have completed a full financial disclosure.
  4. Declaration Regarding Service of Declaration of Disclosure and Income and Expense Declaration (FL-141). This document, which is filed with the Court, means that you have provided that full financial disclosure to the Court.

If you need some sort of orders prior to your dissolution of domestic partnership being finalized, you can file a motion with the Court regarding any family law issue from support to custody to attorney fees. All motions required two forms:

  1. Order to Show Cause (FL-300) or Notice of Motion (FL-301). If this is your first time appearing in front of a judge, you need to file FL-300. If you have already appeared in front of a judge in your dissolution of domestic partnership case, you can file either an Order to Show Cause or a Notice of Motion. This form tells the Court what orders you are requesting.
  2. Application for Order and Supporting Declaration (FL-310). This form must be attached to either an Order to Show Cause or Notice of Motion and provides an explanation to the Court of why you are requesting particular orders.

Statutes

3011. In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, consider all of the following:

  • (a) The health, safety, and welfare of the child.
  • (b) Any history of abuse by one parent or any other person seeking custody against any of the following:
    • (1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary.
    • (2) The other parent.
    • (3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.

    As a prerequisite to the consideration of allegations of abuse, the court may require substantial independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence. As used in this subdivision, “abuse against a child” means “child abuse” as defined in Section 11165.6 of the Penal Code and abuse against any of the other persons described in paragraph (2) or (3) means “abuse” as defined in Section 6203 of this code.

  • (c) The nature and amount of contact with both parents, except as provided in Section 3046.
  • (d) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services. As used in this subdivision, “controlled substances” has the same meaning as defined in the California Uniform Controlled Substances Act, Division 10 (commencing with Section 11000) of the Health and Safety Code.
  • (e)
    • (1) Where allegations about a parent pursuant to subdivision (b) or (d) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child as set forth in subdivision (b) of Section 6323.
    • (2) The provisions of this subdivision shall not apply if the parties stipulate in writing or on the record regarding custody or visitation.

3020.

  • (a) The Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further finds and declares that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child.
  • (b) The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child, as provided in Section 3011.

3040.

  • (a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020: (1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Section 3011 and 3020, and shall not prefer a parent as custodian because of that parent’s sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order. (2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment. (3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.
  • (b) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.

3042.

  • (a) If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody.

3044.

  • (a) Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence.

Family Code Section 4320.

In ordering spousal support under this part, the court shall consider all of the following circumstances:

  • (a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
    • (1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
    • (2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
  • (b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
  • (c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
  • (d) The needs of each party based on the standard of living established during the marriage.
  • (e) The obligations and assets, including the separate property, of each party.
  • (f) The duration of the marriage.
  • (g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
  • (h) The age and health of the parties.
  • (i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
  • (j) The immediate and specific tax consequences to each party.
  • (k) The balance of the hardships to each party.
  • (l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
  • (m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.
  • (n) Any other factors the court determines are just and equitable.

6203. For purposes of this act, “abuse” means any of the following:

  • (a) Intentionally or recklessly to cause or attempt to cause bodily injury.
  • (b) Sexual assault.
  • (c) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
  • (d)To engage in any behavior that has been or could be enjoined pursuant to Section 6320.

6320.

  • (a) The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.
  • (b) On a showing of good cause, the court may include in a protective order a grant to the petitioner of the exclusive care, possession, or control of any animal owned, possessed, leased, kept, or held by either the petitioner or the respondent or a minor child residing in the residence or household of either the petitioner or the respondent. The court may order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal.