california department of motor vehicles

Domestic partnership is a legal status similar to marriage that has been available to same-sex couples (and certain opposite-sex couples) in California since 2000. California domestic partnership was the first registry for same-sex couples in the United States to be created by a legislature not mandated to do so by a court. Originally granting only hospital visitation rights, the scope of domestic partnerships was gradually expanded over a three year period. In 2003, A.B. 205 was passed and signed by Gov. Gray Davis. Taking effect on January 1, 2005, A.B. 205 extended to domestic partnerships virtually all the legal rights and responsibilities of marriage in California. Thus, domestic partnership in California has been effectively transformed into a civil union status.

The laws governing domestic partnership are codified at § 297 et seq. of the California Family Code. Text of code.

In practical effect, of course, the legal rights and duties of California domestic partners are greatly inferior to those of opposite-sex spouses for the simple reason that the vast array of federal rights and responsibilities are still unavailable under federal law to same-sex couples and other unmarried partners. Only a change in federal law will allow California same-sex couples full equality under the law.

Specifics

Eligibility

Currently, a couple that wishes to register must meet the following requirements:

1. Both persons have a common residence.
2. Neither person is married to someone else or is a member of another domestic partnership with someone else that has not been terminated, dissolved, or adjudged a nullity.
3. The two persons are not related by blood in a way that would prevent them from being married to each other in California.
4. Both persons are at least 18 years of age.
5. Either of the following:
   • Both persons are members of the same sex.
   • The partners are of the opposite sex, one or both of whom is above the age of 62, and one or both of whom meet specified eligibility requirements under the Social Security Act.
6. Both persons are capable of consenting to the domestic partnership.

Also, a legal union of a same-sex couple, other than marriage, validly performed in another jurisdiction, that is substantially equivalent to a California domestic partnership, will be recognized as such in California. Civil unions in Vermont, for example, most likely qualify as domestic partnerships in California. Oddly, however, a valid same-sex marriage performed in a jurisdiction that recognizes such unions, such as Massachusetts, would not be recognized in California as either marriage or domestic partnership.

Registration

Domestic partner registration is an uncomplicated process, more simple and less costly than entering into a marriage. Both parties must sign a declaration listing their names and address. Both signatures must be notarized.Unlike a marriage and in direct contradiction of the implications of A.B. 205, there is no line on the form for the couple to elect whether or not they wish to change their last name(s). The declaration must then be transmitted to the Secretary of State along with a $10 filing fee ($25 for expedited service). In this regard it is not entered into like a marriage or a Vermont Civil union becauce it is not solomized by a priest, minister, rabbi, judge, or justice of the peace. Furthermore, there is only one reported same gender couple (see discussion below) who changed their names after registration with the Department of Motor Vehicles, Social Security, and the State Department (for passports).

Termination and Dissolution

A domestic partnership may be terminated by filing a notice of termination with the Secretary of State under the following conditions:

1. The Notice of Termination of Domestic Partnership is signed by both domestic partners.
2. There are no children of the relationship of the parties born before or after registration of the domestic partnership or adopted by the parties after registration of the domestic partnership, and neither of the domestic partners, to their knowledge, is pregnant.
3. The domestic partnership is not more than five years in duration.
4. Neither party has any interest in real property wherever situated, with the exception of the lease of a residence occupied by either party which satisfies the following requirements:
   • The lease does not include an option to purchase.
   • The lease terminates within one year from the date of filing of the Notice of Termination of Domestic Partnership.
5. There are no unpaid obligations in excess of an amount defined by statute incurred by either or both of the parties after registration of the domestic partnership, excluding the amount of any unpaid obligation with respect to an automobile.
6. The total fair market value of community property assets, excluding all encumbrances and automobiles, including any deferred compensation or retirement plan, is less than an amount defined by statute, and neither party has separate property assets, excluding all encumbrances and automobiles, in excess of that amount.
7. The parties have executed an agreement setting forth the division of assets and the assumption of liabilities of the community property, and have executed any documents, title certificates, bills of sale, or other evidence of transfer necessary to effectuate the agreement.
8. The parties waive any rights to support by the other domestic partner.
9. The parties have read and understand a brochure prepared by the Secretary of State describing the requirements, nature, and effect of terminating a domestic partnership.
10. Both parties desire that the domestic partnership be terminated.
11. Neither party has, within six months of filing the notice of termination, filed with the Secretary of State a notice of revocation of the termination of domestic partnership.

In most cases, however, a domestic partnership must be dissolved through filing a court action identical to an action for dissolution of marriage.

Legislative History

A.B. 26

California domestic partnerships were first set up by A.B. 26, a bill authored by then-Assemblywoman Carole Migden. A.B. 26 was introduced in the California State Assembly on December 7, 1998 by Assembly members Carole Migden, Sheila Kuehl, and Antonio Villaraigosa. It passed the Assembly and the Senate on September 9, 1999, and was signed by Gov. Gray Davis on October 2, 1999. The law established the basic framework for the registry. The law provided that a domestic partnership could be terminated by any of the following procedures: (1) one partner gives or sends to the other partner a written notice by certified mail that he or she is terminating the partnership, (2) one of the domestic partners dies, (3) one of the domestic partners marries, or (4) the domestic partners no longer have a common residence. The bill granted hospital visitation rights to domestic partners, and authorized state and local government employers to offer health care coverage and other benefits to domestic partners of employees.

2001 Amendments (A.B. 25 and S.B. 1049)

A.B. 25 was introduced December 4, 2000 by Assembly Members Carole Migden, Hertzeberg, and Senator Sheila Kuehl. It passed the Senate on September 10, 2001 and the Assembly on September 12, 2001 and was signed into law by Gov. Gray Davis on October 14, 2001. The bill expanded the class of opposite-sex couples allowed to register as domestic partners by requiring that only one, not both, partners need be over 62 and meet specific eligibility requirements under the Social Security Act. The bill also significantly expanded the rights granted to domestic partners. Specifically, the bill (1) allowed domestic partners to sue for wrongful death, (2) opened up stepparent adoption procedures to domestic partners, (3) expanded benefits for domestic partners of state and local government employees, allowed domestic partners to make health care decisions for each other in certain circumstances, (4) expanded insurance rights for domestic partners, (5) allowed employees to use sick leave to take care of an ill domestic partner or child of a domestic partner, (6) granted domestic partner rights in the creation of conservatorships and trusts, and for the management of the estates of decedents, (7) included domestic partner in the state statutory will form, (8) provided that the termination of a domestic partnership would revoke a bequest of property in a will to a former domestic partner, (9) provided for certain health care related tax deductions to be made available to domestic partners, (10) prevented the disqualification for unemployment benefits of employees who terminate employment to relocate with a domestic partner, and (11) allowed domestic partners to make disability benefits claims on behalf of a partner who is mentally unable to do so.

S.B. 1049 was introduced February 23, 2001 by Senator Jackie Speier, passed the Assembly on July 9, 2001, and the Senate on July 19, 2001. It was signed by Gov. Gray Davis on August 6, 2001. It expanded death benefits and survivors’ allowances to domestic partners of San Mateo county government employees.

2002 Amendments (A.B. 2216, A.B. 2777, S.B. 1575, and S.B. 1661)

A.B. 2216 was introduced by Assembly member Keeley on February 20, 2002. It passed the Senate on August 20, 2002 and the Assembly on August 22, 2002. It was signed by Gov. Gray Davis on September 10, 2002. The bill provided that domestic partners would have the same rights as spouses under the laws of intestate succession (which govern the disposition of the property of a deceased who dies without having executed a valid will).

A.B. 2777 was introduced on February 25, 2002 by Assembly member Nation. It passed the Senate on August 12, 2002, and the Assembly on August 15, 2002, and was signed by Gov. Gray Davis on September 4, 2002. It extended death benefits and survivors’ allowances to domestic partners of county employees in Los Angeles, Santa Barbara, and Marin counties.

S.B. 1575 was introduced on February 20, 2002 by Senator Sher. It passed the Assembly on August 19, 2002, the Senate on August 22, 2002, and was signed by Gov. Gray Davis on September 6, 2002. It allows one to bequeath property to one’s domestic partner even when the latter drafted the will of the former.

S.B. 1661 was introduced on February 21, 2002 by Senator Sheila Kuehl. It passed the Assembly on August 27, 2002 and the Senate on August 30, 2002, and was signed by Gov. Gray Davis on September 25, 2002.

A.B. 205

California altered its approach towards domestic partnership with A.B. 205, also known as the California Domestic Partner Rights and Responsibilities Act of 2003. Text of A.B. 205. Previous legislation had gradually added affirmative rights to domestic partnership, but A.B. 205 simply equated the status of domestic partner with that of spouse. This had the practical effect of granting a vast array legal rights and responsibilities to same-sex couples that had previously not been available under the limited domestic partnership laws. A.B. 205 was introduced on January 28, 2003 by Assembly members Jackie Goldberg, Christine Kehoe, Paul Koretz, John Laird, and Mark Leno. It passed the Senate on August 28, 2003, the Assembly on September 3, 2003, and was signed by Gov. Gray Davis on September 19, 2003. A.B. 205 went into effect on January 1, 2005. A.B. 205 provided that the rights and duties of domestic partners are identical to those of spouses under California law (with the exception of certain state income tax provisions). It altered and restricted the manner in which a domestic partnership may be terminated. And for the first time, it allowed for recognition of similar same-sex unions in other jurisdictions.

The Schwarzenegger Era

As of the end of the 2005-2006 legislative session, Republican Gov. Arnold Schwarzenegger had approved several amendments designed to clarify the rights and responsibilities of domestic partners.

S.B. 565 clearly states that registered domestic partners are entitled to the same protections from tax reassessment of their property or businesses as spouses have under California law.

S.B. 973 specifies that domestic partners of state workers are entitled to retroactive pension benefits, even if the worker entered retirement before the enactment of A.B. 205.

S.B. 1827 allows domestic partners to file joint state tax returns.

A.B. 2051 raises the fee for registering domestic partnerships to $33 ($48 for expedited service). The increase will fund programs aimed at reducing domestic violence among same-sex couples.

A.B. 2208 penalizes insurance providers that continue to discriminate against domestic partners in violation of A.B. 205.

Legal Challenges

Gay rights opponents were upset with the passage of A.B. 205. A signature drive for a referendum on the law was unsuccessful. A lawsuit was then filed challenging the law as a violation of Proposition 22, a voter-approved initiative banning recognition of same-sex marriage. The Superior Court of Sacramento County upheld A.B. 205 on the grounds that it did not create same-sex marriage and thus did not conflict with Proposition 22. Knight v. Schwarzenegger (September 8, 2004). Text of opinion. On a writ of mandate, the Court of Appeal, Third District, similarly upheld the legality of A.B. 205 and affirmed the legislature's authority with regards to domestic partnerships, but in dicta noted that it re-defined in-state marriages to be only between a man and a woman. It stated, "the plain and unambiguous language of Proposition 22 shows that the initiative was intended only to limit the status of marriage to heterosexual couples and to prevent the recognition in California of homosexual marriages that have been, or may in the future be, legitimized by laws of other jurisdictions." (Knight v. Superior Court (2005) 128 Cal.App.4th 14, 18.) On June 29, 2005: The San Francisco based California Supreme Court, the state's highest judicial body, decided to let the lower court rulings stand without comment. Story.

More interstingly, Armijo v. Miles, 127 Cal. App. 4th 1405 (2005) came to a someone different conclusion and in dicta found that Proposition 22 only applied to out of state marriages. At page 1424, after referencing a Legislative Analyst report that views of Proposition 22's scope (that it only addresses marriages entered outside of California and something the Knight court failed to analyze), the Second Appellate District of the Court of Appeals stated:

"The legislative analysis and the ballot arguments readily demonstrate that Proposition 22 was crafted with a prophylactic purpose in mind. It was designed to prevent same-sex couples who could marry validly in other countries or who in the future could marry validly in other states from coming to California and claiming, in reliance on Family Code section 308 that their marriages must be recognized as valid marriages. With the passage of Proposition 22, then, only opposite-sex marriages validly contracted outside this state will be recognized as valid in California. Same-sex marriages will be given no recognition."

Both cases are of equal weight and neither case addressed or ruled on the constitutionality of Proposition 22. The belief is that the Leno bill is firm because Proposition 22 violates equal protection, it applies to only in-state marriages, and is consistent with the Armijo interpretatin of Proposition 22.

Implications

A true example of the effect and after effects of A.B. 205 is as follows: Kevin N. and Don K. of Hollywood, California entered into a domestic partnership and Don K. changed his name to Don N. It is believed that they are the first (and possibly the only) same gender couple in California to utilize the domestic partnership legislation to effectuate such a change. Don N. had his driver's license re-issued by the California Department of Motor Vehicles ("DMV") under his new name. More momumental however was the fact that the federal government recognized the name change in changing Don N.'s name on his re-issued Social Security card. Furthermore, Don N. used the mail-in renewal process to renew his United States State Department passport and included his domestic partnership registration as proof of the name change. In California this process was only previously available for persons who had his or her name changed by adoption, court order, or marriage license. The State Department, however, recognized the domestic partnership registration as sufficient legal proof of the name change and issued the renewed passport using the procedure previously only available for married couples.

However, further research indicates that after the same gender couple used A.B. 205 for name change purposes, the California Department of Motor Vehicles issued guidelines for name changes and expressly now require that both the former name and the new name be on the legal document. Because the California domestic partnership registration form contains no line to indicate what name is to be used, the California DMV no longer recognizes domestic partnerships for name change purposes and this policy appears to violate the intent of A.B. 205, the clear wording of Family Code § 297.5, and the past practice of the California DMV itself.

See also

• California domestic partner law
• same-sex marriage in California
• Paid Family Leave
• domestic partnership
• gay rights

External links

• Domestic Partners Registry. Information from the California Secretary of State. Includes downloadable forms.
• Name Changes. Information on how to change your name with the California Department of Motor Vehicles.