What’s a Domestic Partnership?
A domestic partnership, which is another term for what is also known as a "partnership in fact" (as distinguished from a Statutory Marriage), is a legal relationship in which two parties share an intimate, committed and interdependent relationship. Domestic partners are not eligible to marry and typically do not intend to marry. Domestic partnerships are often characterized by a significant emotional and financial commitment to each other, and also by mutual economic support . A domestic relationship is usually characterized by members of the opposite or same sex. A domestic partnership is not designed to circumvent the laws governing marriage; rather, nothing in the definition of domestic partnership should be construed to mean that the parties are attempting to evade marriage laws.
Parties must be 18 years old or older, currently single, living together, and otherwise compatible by statute.
Domestic Partnerships Recognized in Virginia
Domestic partnerships currently hold a limited legal status in Virginia. While some jurisdictions allow for domestic partnership registrations, the primary legal framework remains a constitutionally challenged ban on same-sex marriage.
Virginia’s statute governing domestic relations, Title 20 of the Code of Virginia of 1950, refers to marriage specifically as the union of a man and a woman, excluding same-sex relationships from that framework. This exclusion also extends to any recognition of domestic partnerships.
There is an exception. In 2012, the Virginia General Assembly enacted Va. Code Ann. § 20-45.2, a statute allowing the establishment of a "reciprocal benefit relationship" between two adults. The relationship is defined as "a civil contract, between two persons who are not married to one another or to anyone else, who are at least 18 years of age and are otherwise mentally competent to enter into a contract, and who are not more closely related than first cousins, under which both parties . . . have agreed to share one another’s lives in a relationship of mutual interdependence and support."
The code section lists the following benefits to which a reciprocal benefit relationship entitles a partner: "health care facility visitation rights for patients; hospital visitation rights; medical decision-making for incapacitated partners; health care decision-making for chronically ill partners; health care decision-making for mentally ill partners; probate matters; access to protected health information; health care facility visitation; health care decisions about incapacitated patients; medical powers of attorney; statutory powers of attorney; health care agents; medical neglect actions; durable powers of attorney; and medical necessity determinations." The code section also provides that a person may not be required to pay court costs or legal fees to a reciprocal benefit partner in any proceeding involving spousal support.
In practice, this statute has only limited utility, as it offers no tax benefits to participants and fails to establish the protections that flow from a marriage to either partner or a third-party, such as the ability to take financial or legal action over certain decisions related to estate planning.
However, the fact that the General Assembly acknowledged, however indirectly, the ability of citizens to enter into mutually beneficial, co-dependent relationships was a step forward. In 2014, the United States Supreme Court ruled that provisions of the Defense of Marriage Act (DOMA) were unconstitutional, and in June 2015 the Supreme Court extended this equality in treatment to same-sex marriage itself. Va. Code Ann. § 20-45.2 remains in effect, but has received little attention since the DOMA decision.
Benefits of a Domestic Partnership
Virginia law provides some important protections for registered domestic partners. If you are covered under an employer-provided insurance plan, your domestic partner will be entitled to receive health benefits just as a spouse would be, without paying income taxes on the cost of the coverage. Employees with health coverage through the Virginia Department of Human Resource Management will also be able to cover their domestic partners under those benefits regardless of whether the coverage is purchased directly from either the state or from their employers.
Under Virginia law, parties may designate health care agents to make health care decisions for them in the event they are unable to do so. The procedures for doing so are undertaken through documents called Durable Powers of Attorney and Advance Medical Directives. Under these documents, provisions can be made for your domestic partner to make medical decisions about your care if you are unable to do so. Additionally, detailed requirements exist for making decisions about the disposition of your body upon your death.
After the death of one of the registered domestic partners, under Virginia law, the surviving partner will have control over the remains and any decisions regarding burial, cremation, or internment. This will include decisions about the location, manner, and timing of the disposition of one’s remains. Additionally, the executor of the will of the deceased domestic partner shall pass all of the assets of the estate to the surviving domestic partner or otherwise provide for the domestic partner in the terms of a testamentary trust of the decedent.
Formalizing a Domestic Partnership
The process for establishing a domestic partnership in Virginia is relatively straightforward. Both partners must be at least 18 years old, and cannot be related to each other in a way that would prohibit a legal marriage in Virginia. They must reside together and share a mutual commitment of emotional, financial, and legal support with one another.
If either partner is currently married or in a registered union with someone else, the first step is to formally terminate those relationships. It is imperative that these steps are completed, as it is illegal in the Commonwealth of Virginia to be simultaneously married to one person and legally joined to another.
Once it has been established that no other unions currently exist, one member of the couple must establish a presence within Arlington County. This means living in the area for at least six months prior to beginning the registration process.
Meetings between the couple and an official from the Registrar’s office will begin after the proper forms have been filled out, along with proof of eligibility. Several documents must be submitted for this process. Particularly, files relating to income, assets, debts and tax returns should be made available. Both partners must also provide information about their health coverage, and living arrangements. These materials should be submitted before the couple can schedule the first meeting with the Registrar.
Both partners must also make citizenship pledges. This is critically important. Governments have increasingly cracked down on those seeking to marry primarily for the benefits they can receive. Because of this, the Registrar’s office monitors applicants closely for evidence of fraud. Totally legal couples should have no problem, but even couples with bona fide relationships can be suspect in some cases. By working with the Government to acknowledge their intentions, domestic partners can help the process go smoothly.
During the first meeting, an official from the Registrar’s office will review the forms submitted by the couple. If the forms are approved, two official things happen. The first is that the couple is legally recognized as domestic partners. The second is that they are placed on an official notice list, which allows them to participate in interviews with the Registrar. These occur within 30 days. The couple usually must meet again with the Registrar’s office for a final interview.
This must take place after at least seven days have passed, but within 90 days of the first appointment to the Registrar’s office. The couples may be asked simple questions about their relationship during the interview, such as how they met or how they celebrate milestones. This is mainly just to allow the Registrar to assess the status of the relationship, looking for any signs that the couple might not have been honest or forthright about information in the contract.
Ending a Domestic Partnership
If a domestic partnership is dissolved voluntarily by the parties, the parties should follow the same procedures as a divorce. The parties would enter into a written property settlement agreement which addresses the issues of the marital relationship. If there are no children, the parties generally file a common law affidavit, a waiver of a personal appearance, and an agreement to submit a divorce decree. If the parties do not reach agreement, then the parties must proceed in Circuit Court .
However, if a domestic partnership is dissolved involuntarily because of the death of one of the partners, the partnership dissolves on the date of the death of the individual partner. The property of the partnership is owned and controlled by the liquating partner until the distribution and proceeds as follows: The liquating partner is required to submit Section 20 155 to the Commissioner of Accounts. If pleadings are necessary, the surviving partner must file a complaint for partition of partnership. The clerk of the circuit court has jurisdiction to partition the partnership property.
Domestic Partnership vs. Marriage and Civil Union
At first glance, all this talk about domestic partnerships may have you thinking of marriage. While at the core, a domestic partnership carries many of the same benefits as marriage, the two are not synonymous with one another. Domestic partnership laws and marriage laws differ from one to another on an international, federal and local level. For instance, while many states recognize legal marriage for same-sex couples, others do not. Regardless of how one may feel about the issue, the fact still remains that marriage is currently not federally recognized in Virginia. Furthermore, there is no legal distinction between domestic partnerships and marriage. The implication here is that as your relationship evolves, it may be more beneficial to consider a lawful marriage rather than a domestic partnership if the option is available. Domestic partnerships also differ from civil unions, which are often aimed at opposite sex couples. Generally, civil unions grant the same merits to couples but differ slightly in the addition of medical insurance benefits.
Updates on Domestic Partnership Laws
There have been some legal changes in Virginia over the past year or so that have significant implications for domestic partnerships. First and foremost, two new bills passed in the 2015 Virginia General Assembly to provide additional protection and rights to domestic partners and their religious institutions. The legislation extends new protections to domestic partners to ensure they have the same rights as those couples that are legally married. The bills also extend individual tax exemptions for domestic partners , and permits anyone to enter into an agreement with their partner in order to share their individually-held property.
These bills have far-reaching implications on a personal level for domestic partners, their children, and their relationships with their families – especially this legislation will now allow for a child to have two legal parents. At the same time, it has important implications for the risk management and potential liabilities for those businesses, employers, and insurance companies who have already incurred or may incur losses based upon the prior treatment of domestic partners under their existing policies and practices going forward.