Requirements and Procedures for Establishing an NJ Domestic Partnership

August 27, 2004

The following article is adapted from a chapter of the book, A Legal Guide for New Jersey Domestic Partners, available online from the author's web site, http://www.njdomesticpartnership.com. The book is to be published in paperback format in the fall of 2004.

The New Jersey Domestic Partnership Act of 2004 (DPA)1 bestows a limited set of rights and responsibilities on same-sex and, to a lesser extent, on opposite-sex couples in caring, committed unmarried relationships. With one exception, the protections of the Act are limited to registered couples.2

This article first discusses the mechanics of the registry created by the Act. Second, it addresses the eligibility requirements and reviews the registration process couples will need to undergo in order to gain the legal protections provided by the Act. Third, it discusses the issues couples should consider prior to registration, particularly if they have an established, unregistered partnership. Finally, the article reviews the alternatives to New Jersey domestic partnership.

State Registry

The Domestic Partnership Act of 2004 creates a statewide domestic partnership registry3 administered by the New Jersey Department of Health and Senior Services4 but delegates the actual registration process to local registrars.5

The Act specifies that the local registrar, who is either the city clerk or the registrar of vital statistics, is to do the actual registration.6 The local registrar is required to verify the eligibility of the applicants, provide the Affidavit of Domestic Partnership, issue a Certificate of Domestic Partnership and maintain a local record.7

On the tenth day of each month, the local registrar is required to file all such certificates with the State registrar,8 who will then update the State registry.9 The State registrar is also responsible for revising records when a domestic partnership is legally terminated.10

Requirements

To be eligible to enter a legally recognized domestic partnership in New Jersey, a couple must meet the following criteria, prior to or at the time of registration:

• They must demonstrate that they have a common residence and are otherwise jointly responsible for each other's common welfare.11
• They must agree to be jointly responsible for each other's basic support during the domestic partnership.12
• Neither party may be in a marriage recognized by New Jersey law or a member of another domestic partnership.13
• They may not be related to each other by blood or affinity up to and including the fourth degree of consanguinity.14
• They must both be members of the same sex, unless they are both at least 62 years of age.15
• They must have chosen to share each other's lives in a committed relationship of mutual caring.16
• Both parties must be at least 18 years of age.17
• They must jointly file an Affidavit of Domestic Partnership,18 and
• Neither may have been a partner in another domestic partnership that was terminated less than 180 days prior to filing the Affidavit, unless the prior domestic partnership ended as a result of the death of a partner.19

Common Residence

The requirement that the parties have a common residence means that they must share a place to live at the time of registration.20 With one exception, the common residence must be in New Jersey.21

Common residence does not mean that the couple's primary residence (called domicile) is in New Jersey; many people have more than one residence, such as a winter home in Florida or a summer home at the Jersey Shore. It is apparently enough under the Act that the couple lives together, at least part of the time, in New Jersey.22

The common residence requirement also does not mean that the couple must jointly own or lease the residence. It also does not matter if one or both parties have additional residences that they do not share, or if one of the parties must reside temporarily elsewhere, on either a short-term or long-term basis, for reasons such as medical care, attending school, taking a sabbatical, employment, or incarceration, so long as there is an intent to return to the shared residence.23

Non-residents

In general, non-residents of New Jersey may not register as domestic partners. However, if either party is a member of one of the six New Jersey-administered retirement systems, the couple's shared common residence may be outside New Jersey.24

Thus, a non-resident couple could register if at least one partner were a State employee or an employee of a public agency that participated in one of the covered pension plans.25

In order to register using an out-of-state common residence, the partner on whom eligibility is based may provide a Certificate of Pension Membership, completed by either their employer or the Division of Pension and Benefits.26 Alternatively, they may demonstrate eligibility by providing a Personal Benefit Statement or Form 1099R.27

Eligible non-residents, part-time residents and couples who relocate to another state after registration should be made aware that, in most cases, the other state of residence does not recognize their domestic partnership.28 Therefore, they should be advised to meet with appropriate legal counsel in any state in which they maintain a residence, as well as any state in which either partner owns property, in order to ensure that their rights outside of New Jersey are protected.

Joint Responsibility

The requirement that the partners be jointly responsible means that each partner agrees to provide for the other's basic living expenses should he or she become unable to do so.29 The DPA provides a somewhat narrow definition of basic living expenses, defining it to mean the cost of basic food and shelter, including health care and other expenses that are paid as a benefit because a person is another person's domestic partner.30

The definition of basic living expenses could involve some significant costs, depending upon how it is interpreted. If may mean that the other costs are limited to paying for medical insurance and other benefits of employment. However, this provision could also be interpreted to mean that the benefit is provided by one partner to the other in recognition of their relationship, leading to demands for all sorts of benefits, such as fancy clothes, automobiles, educational expenses, and the like.

Potential domestic parties should be encouraged to discuss this requirement and incorporate their understanding of basic living expenses into a living together or other pre or ante nuptial agreement, rather than leaving it open to judicial interpretation. Partners with vastly different incomes may have vastly different ideas about the meaning of basic living expenses and a difference of opinion could lead to significant rancor.

Current or Previous Marriage or Partnership

Neither party may be in a marriage recognized by New Jersey law or in a domestic partnership with someone else.31 If either were in a domestic partnership with another partner, that prior partnership must have been legally terminated at least 180 days before attempting to register a new domestic partnership. However, if the prior domestic partner died, the 180-day restriction no longer applies.32

Since the DPA explicitly recognizes civil unions, domestic partnerships, and affinity relationships entered in other states, the 180-day restriction would appear to be applicable to legal relationships formed in other states.

Couples who were previously joined to each other in a Vermont out-of-state civil union, domestic partnership, or affinity relationship do not need to register their partnership in New Jersey in order for it to be recognized. In fact, such couples should be discouraged from registering in New Jersey since this may negate their out-of-state relationship and any resulting additional benefits.

Thus, if either partner has previously registered in a civil union, domestic partnership, or affinity relationship in another state with another person the couple must wait at least 180 days before registering the new partnership.

If one (or both) partner(s), on the other hand, was previously in such an out-of-state legal relationship, and that relationship has not been legally terminated, they must terminate the prior relationship and wait the required 180 days. Fortunately, because of the recognition provision, they will be able to initiate a termination proceeding in New Jersey.34

One situation that remains unclear at the moment is whether a same-sex marriage, legally conducted in some other jurisdiction such as Massachusetts or Canada, would create an impediment to domestic partnership registration in New Jersey.

To date, there has been no court ruling in New Jersey on the question of whether such an out-of-state marriage would be recognized here.35 Nor has there been any challenge to the federal Defense of Marriage Act, which purports to exempt states from recognizing such marriages. However, the question is bound to arise in the near future.

Until the question is decided in New Jersey, same-sex couples who legally marry in another jurisdiction and who subsequently wish to register under the New Jersey Act should be advised to legally terminate their marriage according to the rules of the jurisdiction in which they married.

Sex and Age Restrictions

In addition to the other eligibility requirements, the Domestic Partnership Act imposes some age and sex-related restrictions on partners. Domestic partners must be of the same sex and, therefore, unable to enter a marriage recognized in New Jersey, or they may be of opposite sex and at least 62 years of age.36

This latter category is directed at opposite sex couples that are unwilling to marry for reasons such as a desire to maintain separate property for inheritance purposes or to avoid the loss of retirement benefits. Couples who fit this category should be advised to consult with a qualified estate planning or elder law attorney in order to determine if domestic partnership makes sense in their situation.

Same-sex partners must be at least 18 years of age.37 Unlike the marriage laws, the Act does not contain a provision that would permit a parent to give their consent in order for a minor to enter a domestic partner-ship, nor does there appear to be any provision that allows a legally emancipated minor to enter a domestic partnership.

Transgendered Persons

For transgendered persons, the Domestic Partnership Act creates a special dilemma. New Jersey courts have decided that a person's current anatomical sex determines their eligibility for marriage, rather than their gender identity.38 Thus, two persons of the same anatomical sex are eligible under the DPA, assuming all other requirements are met.

For example, a couple consisting of a male and a post-operative female-to-male transsexual, or a female and a post-operative male-to-female transsexual would be eligible to form a domestic partner-ship under the DPA. On the other hand, a couple consisting of a male and a post-operative male-to-female transsexual, or a female and a post-operative female-to-male transsexual would be ineligible to enter a domestic partnership. However, such a couple would be legally entitled to marry in New Jersey.39

Pre-registration Considerations

Unlike living together, registering a domestic partnership places a couple in a legal relationship that can only be terminated by a judge in a court proceeding.40 Couples who are considering registration should be advised to carefully evaluate their current situation before embracing this new legal status, particularly if the parties jointly or separately own valuable assets, such as automobiles, their home, or their furnishings. They should also be advised about matters that are not covered by the Domestic Partner-ship Act, such as inheritance rights, parenting and custody issues, insurance needs, property ownership, and other matters that married couples take for granted.

Given the rapid changes taking place in the area of marriage rights for same-sex couples, good planning will also be essential for making a transition from registered domestic partnership to marriage, should New Jersey begin recognizing equal marriage rights. Although couples should not put their plans to register on hold until the marriage issue is decided in New Jersey and the U.S., they should certainly be advised to consider the possibility that they may be able or even required to change their legal status from domestic partner-ship to civil marriage in the very near future.

The couple should be advised to execute a living-together or prenuptial agreement, support agreements, wills, declarations of guardianship, parenting agreements, and the like. The number of these agreements as well as their complexity will depend upon whether you are advising a new couple or one that has been living together for some time.

Advising a New Couple

If the parties have only recently become a couple, or have only recently begun living together, their personal and financial lives may not be greatly intertwined. The partners need to have a clear understanding, as they enter into the relationship, what property belongs to each partner individually, particularly if one or both have substantial assets. Doing so at this time will help the couple avoid needless arguments and emotional distress should their partnership happen to fail.

The partners should be advised to make a list of their individual assets. This may not be the most romantic thing they may think of doing, but it is an essential first step in developing a prenuptial agreement. They will also need this list of assets to develop their wills and other estate planning documents.

The partners should also be advised to develop a list of each partner's responsibilities, particularly when it comes to issues such as financial support of the household, financial management, and responsibility for any children. This list is necessary to develop a living-together agreement.

Finally, the partners should determine how they would handle ownership of assets they acquire after registration, such as a home or other real property, big-ticket items such as appliances and automobiles, savings, and other investments. They should also decide whether these items will be financed by loans in one partner's name or in both partner's names.

If the partners are not already living together, they will need to establish one or more of the proofs of joint responsibility they will be required to show when they register their domestic partnership.41 These proofs will need to be prepared prior to registration with the local registrar. Of the proofs enumerated in the Domestic Partnership Act, the easiest to establish are a joint bank account,42 designation as an insurance beneficiary,43 and a will.44 They will also have to establish that they have a common residence, by either signing a lease or purchasing a residence.45

Couples Who Have Been Together For Some Time

Partners who have lived together for some period of time have personal and financial lives that have already become difficult to separate. They should nonetheless be advised to prepare similar lists of assets and responsibilities in order to prepare the documents they should have going into the domestic partnership.

One area that may be difficult to sort out, particularly if the partners have been living together over a period of many years, is the ownership of individual assets. Unless one or both parties are scrupulous record keepers, it may be difficult to establish individual or separate ownership. To minimize arguments, it may be simpler for both to designate most or all of the assets they have acquired as joint property to be equally divided should they decide to terminate your partnership.

Another way to look at the couples' assets, particularly if they have children or other potential legal heirs, is to ask them to designate the assets they would want to leave to those heirs in their will. They should also be advised to isolate assets that are family heirlooms, such as silver that has been given to one partner by a parent, and designate these as separate.

If one partner holds separate title to their common residence or other real property, they should consider whether to change the title to joint ownership with a right of survivorship. If they currently hold joint title to any property, the title should be checked to ensure that the property is held with a right of survivorship, if desired, since the DPA does not address inheritance rights. If title to real property needs to be transferred, however, the couple should be advised that the transfer is subject to the realty transfer tax.

In some cases, these couples may already have some or all of the documents and agreements. For these couples, it is advisable to review all of these prior agreements and documents to ensure they do not conflict with the DPA and properly reflect the change in their legal status.

Pre-registration Documents

Although the rights and obligations conferred by the Domestic Partnership Act are significantly less than those conferred by marriage, the Act allows couples to extend those rights and obligations by means of contracts.46 Thus, couples should be advised to develop an extensive set of agreements in order to protect themselves and their partnership to the fullest extent possible.

At a minimum, the partners should prepare living together and prenuptial agreements prior to registration of their domestic partnership. The primary reason for preparing these agreements before registration is to ensure that, should their domestic partnership terminate for some reason, distribution of assets would take place in an agreed manner. Otherwise, distribution of property acquired by the parties during the partnership will be determined by the judge during the termination proceeding,47 who may effect an equitable distribution.48

The partners should also prepare their wills and related estate-planning documents, as well as execute documents such as a guardianship directive, property transfer agreements, living wills, and any documents that may alter or enhance their rights and responsibilities in the domestic partnership.

The partners should also be advised to assemble the proofs of joint responsibility and common residency they will be required to show at the time of registration.

If either or both of the parties has been legally married, or has been in a domestic partnership or civil union with someone else, they should be prepared to demonstrate that they have been granted a legal divorce (if married) or their domestic partnership has been terminated at least 180 days prior to filing registering the new domestic partnership.

Registration Procedure

The actual procedure for registering a domestic partnership is quite straightforward, and there is no waiting period. The partners fill out an Affidavit of Domestic Partnership at the local registrar's office in quadruplicate, and execute it in the registrar's presence.49 The local registrar will stamp the Affidavit with the date of receipt and the name of the district in which it is filed, then immediately return two copies to the partners.50

Once the couple has filed the Affidavit and paid the filing fee of $28, the local registrar will complete a Certificate of Domestic Partnership, and issue two copies of this to the couple along with two copies of the Notice of Rights and Obligations of Domestic Partners.51 The local registrar will retain a copy of the Affidavit and the Certificate for its files, and on a monthly basis, forward the originals to the State registrar's office in Trenton.52

Required Proofs

The Act requires the partners to show that they have a common residence and that are jointly responsible for each other. In order to demonstrate this, the partners are required to show one or more of the following forms of proof:

• A joint deed, mortgage or lease;53
• A joint bank account;54
• Designation by one partner of the other as one of the primary beneficiaries in a will;55
• Designation by one partner of the other as one of the primary beneficiaries of an insurance policy or retirement plan;56 or
• A joint title to a motor vehicle.57

If either partner has been previously married or in another legally recognized relationship, and that marriage or other relationship has been legally terminated via a divorce or similar proceeding, he or she may be required to show proof of that termination.58

The Affidavit of Domestic Partnership

At the time of registration, the partners must file an Affidavit of Domestic Partnership that specifies their names, ages, com-mon mailing address, and contains a statement that they meet the requirements for domestic partnership at the time they sign the affidavit and that they intend to enter such a partnership.59 The Affidavit can only be obtained at a local registrars office, and may not be removed from that office unless fully executed.60

Filing an Affidavit of Domestic Partnership that is intentionally false or misleading can subject the parties to a suit under the New Jersey Penalty Enforcement Act, which can lead to a penalty of up to $1,000.61

Where to Register

Couples register with a local registrar, who is either the city clerk in first-class cities, or the registrar of vital statistics in most other municipalities. The New Jersey Department of Health and Senior Services maintains a list of local registrars on its web site at http://www.state.nj.us/health/vital/regbycnty.shtml.

Unlike the New Jersey marriage laws, which specify the local registrar to be used, the DPA does not require a couple to register in the town in which they reside. This concession ensures that same-sex couples can obtain the protections of the Act without self- identifying as a same-sex couple in their community. Many such couples may feel more comfortable registering elsewhere in the State.

Certificate of Domestic Partnership

At the time of registration, the local registrar will complete a Certificate of Domestic Partnership, which contains the partners' full names, the date of registration, a statement that the partners are members of a registered domestic partnership recognized by the State of New Jersey, and a statement that the they are entitled to all the rights, privileges and responsibilities that law provides.62 The registrar will then provide them with two copies of the Certificate, which bear an official state seal, and a copy of the Notice of Rights and Obligations.63

The partners should be advised to keep these Certificates, along with their file-stamped copies of the Affidavit, with their other valuable papers in a fireproof safe or safe deposit box. Additional copies of the Certificate may be obtained by filing a request with the State registrar in Trenton, for which a fee may be charged.64

Alternatives to Domestic Partnership

Couples are not required to register a domestic partnership in New Jersey any more than an opposite-sex couple is required to marry. Although registering a domestic partnership provides the partners with some state-guaranteed rights, it also carries with it some responsibilities that one or the other partner may not wish to impose on the relationship. In particular, the DPA places the weight of the law behind any agreements that the partners may have entered into with each other, allowing the partners to contractually add to their rights and responsibilities.

One reason to consider alternatives is if the alternative provides greater rights than the couple might otherwise obtain from a registered domestic partnership. Another reason is if the alternative provides greater freedom than a more formal legal status.

On the other hand, none of the alternatives discussed below will provide a same-sex couple with tax benefits under New Jersey law. If a couple owns valuable assets, such as their home or other real or tangible property, they should be advised that they would lose the inheritance tax advantage conferred by the DPA if they choose one of its alternatives.

There are three alternatives to registered domestic partnership same-sex couples should consider. First, they may attempt to marry in a jurisdiction that permits same-sex marriage, such as Canada or Massachusetts. Second, they may register in a Vermont civil union or an out-of-state domestic partnership. Finally, they could simply continue living together, as same-sex couples have done for many years.

Civil Marriage

Domestic partnership and the alternatives discussed below have significant limitations as compared to civil marriage. First, they attach a state-sanctioned second-class status to the same-sex couple. Second, they create a patchwork of laws that may or may not be recognized by other states the couple travel through or relocate in. Third, they confer none of the many federal benefits of marriage, such as immigration, entitlement to benefits, or federal taxation. Finally, such laws are unlikely to be a useful basis of a challenge to the federal Defense of Marriage Act,65 which limits marriage for federal purposes to opposite-sex couples.

Furthermore, many couples see the rites of marriage as a more serious level of commitment to the relationship. Deeply committed couples want, and in many cases deserve, the additional respect that society attaches to a married couple. Couples who value marriage over all other forms of relationship may wish to consider entering civil marriage in Massachusetts, Canada or elsewhere. However, in doing so, the couple should be advised about the problems associated with this alternative.

First, unlike opposite-sex marriage, a same-sex couple married in Canada or Massachusetts does not obtain automatic recognition of the marriage in New Jersey. In fact, the couple will most likely face a lengthy and expensive court battle for recognition, with an outcome that is far from certain.

Second, there is a significant chance that the marriage may be rendered void by state and/or federal law. Massachusetts is attempting to amend its constitution to declare same-sex marriage invalid. There has been discussion, but no clear consensus on what the status of marriages entered between now and the year November 2006, the earliest date on which the Massachusetts amendment could go into effect. Furthermore, the Massachusetts governor has taken steps to prevent out-of-state couples from obtaining marriage certificates and to invalidate marriages already entered into by non-resident same-sex couples. The marriage could also be invalidated if the Federal Constitution were amended to invalidate same-sex marriage.

Third, the DPA recognizes civil unions and domestic partner-ships entered elsewhere but there is no equivalent recognition to out-of-state or foreign marriages. Thus, a Vermont civil union would convey domestic partnership status on a couple, but a Massachusetts or Canadian marriage would not.

Finally, civil marriage may legally affect the couple's ability to register as a domestic partner in New Jersey. As discussed above, the Act excludes a couple from registering as a domestic partner if either person (or both) is in a marriage recognized by New Jersey law.66 On the other hand, if New Jersey law recognizes the marriage, the couple already has significantly more protection than they would receive from domestic partnership. Nevertheless, until it is legally clear as to whether or not a marriage entered into in Massachusetts, Can-ada, or elsewhere is recognized in New Jersey, marriage should be considered a high-risk alternative.

Vermont Civil Union or Out-of-state Domestic Partnership

A second alternative to a New Jersey domestic partnership is a Vermont civil union or another state's domestic partnership. Vermont's Civil Union law, which went into effect in 2000, provides nearly all of the benefits, protections and responsibilities granted by marriage.67 California's newly amended Domestic Partner Rights and Responsibilities Act of 2003, which was signed into law on September 19, 2003, also extends most of the rights and duties of marriage to persons who register as domestic partners on or after January 1, 2005.68 Notably, both the Vermont law and the California law allow non-residents to register.

The New Jersey Domestic Partnership Act recognizes civil unions and domestic partnerships entered into outside of New Jersey. However, the Act is unclear as to what rights such a couple would have in New Jersey.

Depending upon how the New Jersey courts rule in regard to the recognition of civil unions and other states' domestic partnership laws, registering as a Vermont civil union or a California domestic partnership may become an attractive alternative to registering under the New Jersey law. At a minimum, the couple would receive at least the rights provided under the New Jersey DPA.

Living Together

Many couples have lived happily together for years without any legal sanctioning of their relationship. Same-sex couples have been free to work out alternative relationships because of the inability to marry or enter some other form of legally recognized partnership. Unregistered partners are more easily able to terminate their relationship, since no formal court proceeding is required. Some couples believe that this freedom to leave has brought a greater level of commitment to the relationship. Others believe they should not enter relationships that mimic heterosexual norms.

If a couple chooses this alternative, it is particularly important that they develop a good set of agreements to establish each other's rights in the relationship. Many of these documents, such as a will, are documents that the couple will need to develop regardless of the legal form of its relationship. Others, such as visitation agreements, are more important in a non-formalized relationship, since there are no built-in protections for those who simply live together.

Summary

If a couple is seriously considering registering in New Jersey as domestic partners, the following questions should be evaluated:

• Is domestic partnership better for the couple than marriage, civil union, or simply living together?
• Do the parties currently meet the legal requirements for a registered domestic partnership?
• Are they willing to fulfill all of their obligations under the Domestic Partnership Law?
• Will the partners continue to maintain a residence in New Jersey for at least the foreseeable future or, if they no longer reside in New Jersey, are they enrolled in a New Jersey sanctioned retirement or pension plan?
• Do the partners sincerely want a legal status that will require a judge's order to terminate?

If both partners can answer yes to all of these questions, then the next step is to help the couple determine and develop the additional agreements and other legal documents they should have to protect and add to their domestic partnership rights and obligations.

Finally, you should advise them on the mechanics of the registration process:

1. Establish a common residence
2. Gather the required proof
3. Obtain and complete the Affidavit of Domestic Partnership
4. File the Affidavit with a local registrar
5. Pay the filing fee
6. Obtain the Certificate of Domestic Partnership

Unlike marriage in New Jersey, which requires a couple to obtain a marriage license in advance of the actual wed-ding, a registered domestic partnership is entered into at the moment a clerk accepts the couple's Affidavit. Like marriage, however, once entered into, the partners will find domestic partner-ship hard to end, should their relationship fall apart. Couples should be advised to consider their decision to register with at least the same level of thought as they would a marriage.

Endnotes