Choosing to Not Say “I Do”: Tips for Creating a Legally Sound Domestic Partnership

Choosing to Not Say “I Do”: Tips for Creating a Legally Sound Domestic Partnership

by Brette Sember, Esq., September 2014

Marriage isn’t for everyone and fewer people than ever before are tying the knot. According to a Pew Research study, fewer Americans over age 25 are marrying than ever before and by the time they reach middle age, 25% have never married. While saying “I do” is becoming rarer, living together is becoming more common. 7.8 million Americans are living together in a relationship. If you live together, you might not be ready for a ceremony, but there are lots of things you can do to create protections, define your relationship, and, cement your rights.

What Is a Domestic Partnership?

An important alternative to marriage is domestic partnership. In considering marriage vs. domestic partnership, it’s important to recognize that domestic partnership is not as widely available as marriage. In some states, it is available for any couple that lives together, while in others, it is only for those over age 62. Currently, some type of domestic partnership is recognized only in California, Colorado, Hawaii, Illinois, Maine, Maryland, Nevada, New Jersey, Oregon, Washington, Washington D.C. and Wisconsin. New York City and San Francisco are two large municipalities that offer then. Some employers offer domestic partner benefits even if the state they are in does not offer formalization.

Domestic Partnership Agreements

There are several ways to become domestic partners in some manner. You can register with your state or municipality by signing a registry. Your employer might grant you domestic partnership benefits if you can show the certificate or even if you just show a joint lease. Even if your state does not offer a registry, you can create a written domestic partnership agreement that is a private contract between the two of you, specifying everything from how you will split the bills to who will take out the garbage. These agreements allow you to carefully work out all of your responsibilities and rights in the relationship and after it ends.

Domestic Partner Rights

The rights granted to domestic partners vary from state to state. They may include adding your domestic partner health insurance, taking leave under the Family and Medical Leave Act to care for a domestic partner, occupancy rights in public housing, authority to visit each other in the hospital and be considered next of kin for medical decisions. Domestic partners may be beneficiaries of each other’s state retirement benefits and may be able file joint state taxes. They can enter into debt together. Because domestic partners are not recognized under federal law, health insurance benefits to partners are taxable, federal taxes must be filed separately, and there is no right to receive a partner’s Social Security or federal retirement benefits.

Getting Real with Real Estate

If you buy a home with your partner, you can own the property as joint tenants or as tenants in common. It is also possible to own the property through a living trust, which will control ownership after the death of one or both of you. In California, it is possible to own together as community property with or without survivorship.

I Will Get a Will

Creating a will is an important way to protect your partnership and ownership rights together. Designating your partner as your beneficiary and executor ensures that he or she will inherit all of your property after your death. Because you are unmarried, the property will be subject to federal inheritance taxes. The creation of trusts is another way to cement property inheritance in your relationship.

Family Ties

Many domestic partners have children together. If you are both the biological parents, parentage is made legal with the birth certificate or by signing a state paternity registry. You may also adopt each other’s children, or adopt children together (in some states). Your state family court can handle any disputes about custody, parenting time, or child support that should arise if you end your partnership.

Common Law Marriage

In some states, if you live together for a length of time (usually 10 years or more) and hold yourselves out as being married (such as introducing your partner as “my wife” or signing documents indicating you are married), you are considered legally married in that state. Alabama, Colorado, Iowa, Kansas, Montana, New Mexico, Rhode Island, South Carolina, Texas, Utah, and Washington, D.C. have laws recognizing common law marriage.

Ending a Partnership

Ending a relationship is much simpler in a domestic partnership versus a marriage. Generally, only one of you has to file a form stating it is over, often paying a small court fee. Compared to the months it can take to formally end a marriage, the stress and emotional turmoil, and the huge amounts of money involved in a divorce, this is much simpler way to go. The downsides are there are not as many protections available to unmarried couples, there’s no right to alimony, and there’s only a limited right to property division.

Choosing to skip marriage and become domestic partners can present a much simpler way to live a joint life together.

Looking to live together without getting married? LegalZoom’s Cohabitation Agreement can help protect each person’s interest. Plus, you may want to consider a living trust, living will, last will and power of attorney to further protect your rights.