Understanding The California Domestic Partnership Law

Posted by: Gerald A. Maggio, Esq.

Gay marriage and domestic partnership attorneys in Los Angeles Orange County California; California Divorce AttorneysThe California Domestic Partnership Law was cemented by Assembly Bill 2015. The bill states that registered domestic partners will have equal rights, benefits and protections like spouses. They will also be subjected to same responsibilities, duties and obligations under the California state law, independent of these deriving from statutes, court rules and administrative positions or other law sources or provisions. Such protections will be applied from the date the couple registers themselves as domestic partners within the State of  California. These advantages cannot be enjoyed if they move out of California.

Eligibility

The couple must meet a few criteria to get registered in a domestic partnership. First and foremost is that they should live in the same residence. No person in the couple could be married to a third person or be engaged in a domestic partnership with another person. The couple should not be blood related in a manner which will prevent their marriage. Both members of the couple must attain a minimum age of 18 years. The two must be capable of providing consent to domestic partnership. Eligibility conditions specify either both persons be of same sex or one of them or both must be aged 62 years or above.

Domestic partnership registration

Couples must download the domestic partnership declaration form from the California Secretary of State website. Alternatively, the form can be had at the office of any country registrar. It is available at any of the many offices of California Secretary of State. It is required that both parties should sign form in presence of notary. The form must be notarized. It should then be mailed to the Secretary of State office with the needed fee. When you sign the form, you must inform your mailing address. You should also attest to meeting all requirements of having a domestic partner. You also consent to have the case dealing with yourself in any California court in case you will go to the court for partnership dissolution or separation. This is applicable even if both members of the couple do not reside in California.

Any couple who have registered as a domestic partner before January 1,2005 with State of California will automatically gain new responsibilities and rights as offered by the bill. In short, if the couple have not terminated relationship before January 1, 2005, they will now be subjected to the same responsibilities and rights offered by the bill.

To learn more about the divorce process in California and how Orange County divorce mediation can help, please visit our page, What is Divorce Mediation

Legal Rights of Unmarried Couples Living Together

Posted by: Gerald A. Maggio, Esq.

mediator divorce orange county; California Divorce MediatorsMore and more couples are living together in long term committed relationships without getting married. Such partnerships or relationships fall under the category of cohabitation. The legal rights of unmarried couples living together are very different from those of married couples.

Given below are the rights of cohabiting couples:

Rules related to finances

In the eyes of the law, two unmarried people are two separate individuals. So bank accounts, savings, and investments will not be jointly owned. It would remain in the ownership of the named individual. Anything held jointly will be divided equally unless there is a legally recognized agreement signed by the couple.

Unlike spousal maintenance, the partners are not entitled to any kind of financial support. But if there is a child from this relationship, the partner is entitled to child support.

Rules related to child issues

If unmarried couples living together separate, there will be different laws for the custody of the children resulting from this cohabitation. Both parents have equal rights over their children. But it needs to be decided who the children are going to stay with and what the visitation rights would be.

The unmarried couple may voluntarily sign a written agreement or notarized separation agreement stating the rights regarding the custody of the children, visitation and other rights. The agreement will then become the basis of all decisions made regarding the custody of children.

Rules related to property

If an unmarried couple owns a house together, the property will get divided equally between the two partners on separation. One person usually buys out the other’s share of the property. If there is an outstanding mortgage, the partner pays for that too. If this is not possible, the property is sold and then the share of each person is calculated.

If the property is in the name of an individual, the person in whose name the property is retains full ownership. A complication may arise if the person who is not a registered owner has made financial contributions towards the property. If that partner has made payments towards the mortgage, paid for repairs and other improvements, that partner can claim part ownership in the property. You will then have to approach a court of law.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Mediating Same-Sex Divorces

Posted by: Gerald A. Maggio, Esq.

Same sex divorce attorneys; California Divorce MediatorsAlthough most of the states in the USA have accepted same-sex marriages, it has not been accepted completely by the country as a whole. As the governments and the judicial system do not recognize same-sex marriages or partnerships, it becomes quite difficult and challenging for same-sex couples to resolve their personal disputes.

Litigation and court sessions are still the most common methods used by same-sex couples to finalize a separation. It goes without saying that these processes are quite expensive and cumbersome.

California accepts same-sex marriages and domestic partnerships and as such there are options for mediation between gay and lesbian couples. Until very recently, only ‘straight’ couples had the opportunity of mediating their divorces. Now more and more mediators are coming up to resolve marital issues in the LGBT community.

Mediation is a lot more economic and an efficient process. It involves the help and advice of a mediator or an expert. The mediator works towards resolving issues between two parties by opening a healthy discussion and helps to reach a common solution that will benefit both the parties.

Drawbacks in same-sex divorces

Division of property and providing for the children are the two most challenging aspects in gay divorces.

Property division becomes very unpleasant because there are no laws laid down by any governing body to determine a proper sharing of the things owned. Due to the absence of such laws, separating couples need to rely on oral contracts or contract laws.

Oral contracts generally give rise to ‘he said’ – ‘she said’ conflicts thereby making the division even more difficult. When it comes to contract laws, no one thinks of signing a contract when in a healthy relationship.

Mediation sessions are always confidential and aim to reach a consensus in an amicable manner. Mediators help to identify and prioritize issues that are causing conflict. Then they guide and advise you on reaching an agreement. The psychologist, who is part of the mediating team, is present at all times.

Same-sex divorces and separations are as emotionally charged and uncomfortable as straight divorces are.  Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

Same-Sex Divorce Laws in California

Posted by: Gerald A. Maggio, Esq.

same sex divorce; California Divorce MediatorsSame-sex marriages like hetero-sexual marriage have the potential to head for a divorce. The divorce laws differ from state to state and the laws in the State of California is much more relaxed. In California, you don’t have to give reasons for a divorce. If you feel you need a divorce from your partner you can get one without showing any proof of why you need one. In California, it is all about giving a chance to both you and your partner to lead separate lives.

Like in any other marriage, same-sex marriages also have certain considerations. If you and your partner are heading for one, read through the following points to gain a better understanding of things you need to consider.

  1. Dissolving domestic partnerships

In California, domestic partnerships are viewed as marriages. If you plan to divorce your partner, you must end your domestic partnership as well. Only after you have done this will the state declare you single and eligible for re-marriage. This is one important difference between a hetero-sexual marriage and a same-sex marriage.

  1. Residency requirements

If you and your partner are getting a divorce in California but belong from a different state, then there’s lot to cheer about. In California, you don’t need to be a resident of the state to get a divorce. In other states, usually, you need to provide residency proof of at least 6 months before you can head for a divorce.

  1. Custody rights

Custody rights are a big issue in America. The U.S. Justice Department take it very seriously and same-sex couples face the same issue. If you can resolve the issue amicably with your partner, then things become much easier. But if you can’t then the state courts will take weigh every information about the child and then come to a conclusion. Custody battles can be tough and it’s one of the reasons why divorces become difficult.

  1. Dividing assets

Assets are divided based on who owns what. Most times, this can be difficult due t the length of marriage. Again, if you and your partner can decide on which asset belongs to whom, it becomes easy. But in case you can’t decide then the court looks at the duration of marriage and then comes to a conclusion. But mind you, Marriage and living together is not the same thing. It all depends on how the court views your marriage.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Same-Sex Prenuptial Agreements: Special Considerations?

Posted by: Gerald A. Maggio, Esq.

Top divorce mediators Orange County; California Divorce MediatorsIn California, same-sex couples can benefit from all of the legal rights and protections that the state offers to married couples.  As a result, many same-sex couples in California believe that the creation of a prenuptial agreement involves generally the same issues and considerations as it would for any other couple.

But there are many critical reasons that same-sex couples – even those without children – should take the time to consult with a family law attorney before the marriage.  In a national context, married same-sex couples still face a number of legal complexities that other married couples do not face.  Carefully-drafted premarital agreements can help guard against those complexities.

Many U.S. states still do not recognize same-sex marriage.  And just one of those states, Missouri, recognizes same-sex marriages legally performed in other states*  (*as of the time that this article was written).  The other states that do not recognize same-sex marriage also refuse to recognize many of the legal rights of married same-sex couples, including the right to divorce.

Same-sex couples married in California may obtain a divorce from the California courts if they reside in a state that does not recognize same-sex marriage.  But the enforcement of a prenuptial agreement for same-sex couples residing in those states can be problematic, especially if the enforceability of the agreement rests on the recognition of a marriage or a divorce.

Fortunately, this issue can be put to rest at the outset through an alternate method of drafting the premarital agreement.  The American Bar Association (ABA) recommends that the agreement be drafted as a contract that is enforceable regardless of whether the marriage is recognized or not. The result would be a contract recognized in all fifty states. This alternative way of drafting a prenuptial agreement should be discussed with a family law attorney experienced in addressing legal issues facing same-sex couples.

Same-sex couples who have children or who are planning a family should also consult an attorney prior to the marriage in order to understand how the family can be protected through provisions in the prenuptial agreement in case the family moves or travels extensively out-of-state.

Same-sex couples may also want to take the time to create additional legal protections before the marriage, beyond the prenuptial agreement.  The creation of a health care proxy may be especially important for same-sex couples, as the ABA also notes.  A married same-sex couple traveling to or residing in a state that does not recognize the marriage may face difficulties in a medical emergency – family visitation rights and decision-making rights may not be afforded to the spouse by hospital staff. A pre-existing health care proxy may help afford many of these rights.

To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”

Same Sex Divorce and Domestic Partnership Mediation

Posted by: Gerald A. Maggio, Esq.

divorce mediation lawyers; California Divorce MediatorsSame sex divorce and dissolution of domestic partnership mediation can help your partner and you end your marriage or domestic partnership on amicable terms. If things aren’t working out between the two of you, both of you can seek a divorce mediator. However, before you do, you should know that same sex marriage is not legal in every state and the laws to grant a divorce are different from straight couples. Following are some differences that same sex couples should know:

1.     Location of Marriage

Same sex couples that married in a state that legalized same sex marriage, but live in a state that has yet to, need to file in the state that recognized their union in order to get a divorce. Additionally, the same sex couples need to be a resident of the state that they are filing.  For instance, California, which allows same sex couples to get married, requires them to live there for six months.

2.     Living in Two Different States

Same sex couples that no longer live with each other, but are separated and living in different states will come across certain challenges. For instance, you live in Ohio where same sex marriage is recognized while your partner moved to Iowa that doesn’t recognize the union. For all medical decisions, your ex in Iowa will be in-charge of making medical decisions. Even if Iowa doesn’t recognize the union, it recognizes medical decisions.

3.     You Cannot Remarry, Unless Divorced

Same sex couples need to take extra care when moving on to the next relationship, especially if they haven’t filed for divorce. If they become married again, they will face a bigamy charge. You will have to get a divorce in the state you got married, before moving on.

4.     Laws Are Always Changing

Laws change constantly, which means that the laws of a particular state that doesn’t allow same sex marriages can change as well. If they do change while the same sex couple is still living there, they will get all the rights of a married couple. This means that both of you will now be eligible for divorce.

5.     Child Custody Problems

If you and your partner adopted a child together, you will not be treated any differently in the court of law than other married couples. The proceedings of who gets custody of the child are the same for them as they are for everyone else. Just as every other soon to be divorced couple, you and your partner will have to sit down with a divorce mediator to decide who gets custody on what days.

6.     Pre-Nuptial Agreement

Although most straight couples may seek a pre-nuptial agreement, if they have anything to lose if a divorce occurs, most same sex couples do not. Since same sex marriages are fairly new, most of them do not have a pre-nuptial agreement.

To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”