How Domestic Partnerships Work in New York
New York State law defines a domestic partnership as a civil contract between two adult individuals, regardless of sex, who: are the sole domestic partner of the other person; share an intimate and committed relationship; share a common household; agree that they will be responsible for each party’s welfare and financial obligations to the extent economically necessary for each party’s welfare; and are each at least 18 years old and otherwise capable of entering into contracts. Both partners must be residents of the municipality where they register the partnership, or be employed by that municipality .
In New York City, the following people may register as domestic partners: two adults who are not legally married to anyone else and who reside together and are parties to a committed and financially interdependent relationship; or an individual who has registered a domestic partnership in another state or country where marriage-like domestic partnerships exist and wishes to obtain a New York City equivalent registration.
Currently, only the counties of New York, Kings, Richmond, Queens and Bronx have set up domestic partnership registries. Appointed within those counties are registrars who oversee registries. An eligible couple must file a registration application form, a statement of domestic partnership, and pay a $35 fee. In exchange, they receive a Certificate of Domestic Partnership. Domestic partnerships are recognize by the federal government for certain purposes, including health care benefits.
Marriage Offers Many Legal Rights and Benefits in New York
Marriage carries numerous legal benefits in New York, some of which are not conferred upon domestic partners. When a married couple files the federal taxes, they can claim a Marriage Bonus, which is an automatic financial benefit based on their combined income appearing on a single tax return. When a couple isn’t married, their federal taxes require them to file separately. The Marriage Bonus therefore makes it less expensive to be married than unmarred.
Couples married in New York receive extra legal benefits while managing important life and death decisions. For example, a spouse may make medical decisions on behalf of a surrogate if the surrogate and her partner aren’t married. This privilege doesn’t usually apply to domestic partners.
If one spouse dies, the other is entitled to a portion of his or her wealth. Inheritance is one of the most significant benefits of marriage. Without marriage, a partner will receive nothing if the person who holds the assets passes away. A surviving spouse can collect social security if the deceased spouse would have been eligible to do so were he alive.
A surviving spouse who is legally married will receive 100% of the assets in any trust id the trust has not named anyone else as beneficiary. A domestic partner will not receive any assets in such a trust.
When a person seeks to adopt a child in New York, their marital status is taken into account. Unmarried adults are generally viewed as less desirable for adoption than married couples.
How Domestic Partnerships Differ from Marriage
In comparing the rights and responsibilities of domestic partnerships and marriage in New York, it is important to note that agreements will need to bridge those gaps. For example, although a legally married spouse will be entitled to certain property rights in the event of divorce, a domestic partner may have to petition the court for equitable division without spousal or child support. This can be a challenge if there are no assets or income to divide because of a childless and unemployed domestic partnership.
Unlike spouses, a domestic partner can retain the right to decide whether a partner will be placed in a nursing home or skilled nursing facility under N.Y. Banking Law § 675 (5). In addition, taxation of domestic partner marital agreements may not be the same. Under N.Y. Dom. Rel. Law § 247 (1) and (2), New York will not enforce marital agreements that oppose public policy as well as those that are made in consideration of marriage; thereby, invalidating a premarital agreement. However, N.Y. Dom. Rel. Law § 236 B(3) (6) does not treat a cohabitation agreement in a similar manner. Thus, cohabitation agreements, under these circumstances, would not be enforceable by one party to another.
Emotional and Social Differences
For many, legal recognition of their love through domestic partnership is an overwhelming positive. Those who have felt marginalized or discredited, often by a system that has failed to recognize their relationships, now receive recognition and validation. Conversely, some may still feel a tinge of loss when bypassing the institution of marriage , since marriage is often viewed as the ultimate form of commitment. Others may feel that it signals compromise on the part of public policy in recognizing domestic partnerships and marriage as equals. This may be particularly contentious for those who have long championed for full legal recognition as equals to married couples. In determining whether a domestic partnership or marriage is appropriate in New York, it is imperative to consider not only contract and dissolution rights, benefits, and obligations, but also the matter of social and emotional well-being.
Separations – Separation Agreements and Legal Separations
Dissolving a domestic partnership is different than divorcing a spouse. In New York, both a divorce and an action to dissolve a domestic partnership require court involvement. However, it should be noted that a domestic partnership has the advantage of dissolving without court intervention in some states as well as for purposes of federal taxes.
In New York, pursuant to § 65 of the Domestic Relations Law, an action to dissolve a domestic partnership is commenced by filing a petition with the clerk of the court. While a domestic partnership may dissolve by proper written agreement in any state which recognizes the status of the parties as a domestic partnership, in New York it requires a court filing and court fee. A petition for dissolution of a domestic partnership may be filed by either party in Supreme Court in the county in which either partner resides, or, if both reside without the state, in New York County. A domestic partnership may be dissolved only on one or more of the following grounds: a. The partners are compatible and consent to the dissolution of the domestic partnership, or have lived separate and apart for at least six months immediately prior to the filing of the petition and irreconcilable differences between the partners for six months immediately prior to the filing of the petition; b. A partner was sentenced to imprisonment for a term for which the partner is or may be imprisoned during the partnership for three or more consecutive years subsequent to the sentence; c. Mental incapacity of a partner rendering that partner incapable of being responsible for the partner’s affairs; or d. A partner has been declared incompetent to make decisions concerning the welfare of such partner’s person or property, pursuant to the provision of article seventyeight of the mental hygiene law or any similar provision of the law of any other jurisdiction. In New York, unlike a divorce, no waiting period is required before either party may file for dissolution of a domestic partnership. However, a domestic partnership may not be dissolved unless the partners have been separated for at least six months, or one or both partners have lived in a state that recognizes the dissolution of a domestic partnership prior to the adjudication of the matter in New York. After a domestic partnership is dissolved, rights and obligations that would arise from a marriage do not result from the continuation of the partnership.
Which is Better for You?
Which is Right for You: Domestic Partnership or Marriage in New York?
When it comes to choosing a relationship that ultimately meets your legal needs, it’s important to consider your personal circumstances in addition to the legal realities. To that end, let’s take a look at several pertinent questions one should ask when determining whether a domestic partnership or a marriage is the right choice.
Do you plan to have children? In the past few years, whether through adoption or surrogacy, modern couples are finding new, creative ways to grow their families. However, these processes can be complicated and time consuming, so it’s critical to understand exactly what legal protections marital status offers to both you and your partner, as well as their parents.
Are you interested in living apart? In the United States, there are two types of separations that can result in dissolution of a couple’s rights to one another. Legal separation, which is obtained through the filing of a petition with the court and signed by the judge, acts as a contract between the spouses that defines the parties’ rights in terms of spousal support and property division while they are still married. Conversely, a domestic separation takes place when a couple agrees to live apart from one another but does not file a legal separation petition with the court. It is important to note that while legal separation preserves the marriage, a domestic separation does not. By contrast, a judgment of divorce will dissolve a marriage and return both parties to single status .
What are some of the different legal implications involved? Marriage offers a host of legal protections that domestic partnerships simply cannot replicate. For example, a marriage is generally deemed to exist as long as you and your partner meet the legal requirements set by the state and co-habitate as a couple, whereas a domestic partnership may require filing a specific application with the state or local government authority to recognize the union.
State and federal laws provide married spouses with a host of benefits, including the ability to make medical decisions for one another, receive spousal health insurance benefits and adopt children. By establishing a domestic partnership instead of getting married, you may lose the right to access all of these benefits. Additionally, you may be expected to file separate income tax returns while married.
It’s still important to understand how to protect yourself and each other as individuals because both domestic partnerships and marriages are subject to risk. How do you know when it’s time to take action to protect your financial investment in your personal relationship? There are many ways in which you can ensure that you and your partner are protected, including a domestic partnership agreement, a prenuptial agreement and a shared tenancy agreement. While negotiating a contract or prenup is often an uncomfortable subject to broach, it’s better to be safe than sorry, especially when attempting to preserve your own financial interests, particularly if your domestic partnership ends.