What is a Domestic Partnership?

Domestic Partnerships: Uncovering the Pros and Cons

A domestic partnership is an arrangement in some states, where two unmarried individuals enter into a long-term, committed, and legally recognized relationship. Currently, there is no federal law regarding domestic partnerships. However, many states and employers offer those in domestic partnerships similar benefits traditionally accorded to only married couples. The advantages offered relate to numerous areas, including but not limited to health insurance, life insurance, family and sick leave, and tax benefits.

New Jersey’s Domestic Partnership Act

In 2004, the Domestic Partnership Act (the “DPA”) was enacted into law in recognition of the fact that same-sex couples and unmarried opposite-sex couples in the State were choosing to live in emotional, economic, and personal committed relationships akin to traditional marriage.

Under the DPA, domestic partnership is only available to:

• Couples of the same-sex or opposite-sex younger than 62 years of age who have entered into a domestic partnership before the law’s amendment in February 2017;
• Couples of the same-sex or opposite sex who are 62 years of age or older; and
• Couples who have entered a domestic partnership outside the State of New Jersey, where the partnership was valid according to the state’s laws where it was created.

Under the DPA, to enter a domestic partnership, an eligible couple must jointly file an Affidavit of Domestic Partnership with their local registrar of vital statistics. The affidavit, which must be supported by documentary evidence of the couple’s joint responsibility for each other’s common welfare, sets forth each party’s name and age, their mailing address, and a statement that both parties agree to meet the requirements of and enter into a domestic partnership with each other when the affidavit is signed.

Pros of Domestic Partnership

In a domestic partnership, couples are granted certain fundamental rights and benefits. For example:

Statutory Protections are in place against discrimination based on domestic partnership statuses, such as housing, employment, and credit discrimination.

Tax Exemptions Couples have the right to receive tax exemptions from state personal income tax and the transfer of inheritance tax in an exact way as a married couple can.

Medical Decisions Domestic partners are granted the right to make legal or medical treatment decisions on behalf of an incapacitated partner.

Health and Retirement Benefits are granted to domestic partners of state, county, and municipal employees. Group health insurance coverage for state employees are extended to domestic partners and domestic partnership children.

Inheritance Benefits. If a domestic partner dies intestate (i.e., without a will) a surviving domestic partner is entitled to the same inheritance rights as a surviving spouse under State inheritance law.

Cons of Domestic Partnership

Registering as domestic partners in the State of New Jersey has its risks, especially for people with lower incomes. Couples who take advantage of not being counted as married couples for public assistance programs including, but not limited to: Temporary Aid to Needy Families (“TANF”), Medicaid, Social Security, General Assistance and Food Stamps risk losing those public benefits if they enter a domestic partnership because, depending on the nature of the public assistance program, entering a domestic partnership may result in the domestic partner’s income being counted, thus impacting eligibility.

Terminating the Domestic Partnership

In the State of New Jersey, a domestic partnership can be terminated for a variety of reasons, including adultery, desertion, extreme cruelty, separation, prolonged drug or alcohol addiction, prolonged commitment for mental illness, and lengthy imprisonment of one of the domestic partners. Additionally, domestic partnerships automatically terminate if the couple gets legally married.

Interestingly, a domestic partnership may be more difficult to terminate than a marriage. In New Jersey, married couples have an option for so-called “no-fault” divorce where a couple can obtain a divorce upon a finding that the parties have encountered 6 months of “irreconcilable differences”, regardless of whether or not the couple is still living together. No such ground for termination of a domestic partnership exists in the DPA.

It is also notable that parties to a domestic partnership are not guaranteed the same rights to division of property as a married couple. When a married couple divorces, the court will engage in a process called “equitable distribution”, where the court (or the parties, by agreement) divide all assets and debts acquired during the course of the marriage, regardless of whose name those assets and debts are in. While the DPA does authorize a court to divide and distribute property that is jointly owned, the DPA expressly states that a court is not required to engage in equitable distribution of all property acquired during the course of the domestic partnership. As a practical example, if one party to a domestic partnership were to earn a substantial amount of money during the course of the partnership, upon termination by a court, the other party would not necessarily have any claim to division of that money. In a marriage, the other divorcing spouse would have such a claim.

FSKS is on Your Side

Our attorneys at FSKS are dedicated to ensuring that your rights are protected under the Domestic Partnership Act. We will fiercely advocate on your behalf, helping you transition to the next chapter in your life as smoothly as possible. If you have questions regarding a family law matter, please contact Alan S. Golub, Brian W. Kincaid, or Andrew M. Grenell – who oversee our family law practice – to set up a consultation.