Domestic Partnership Defined in NJ
Under New Jersey intestate succession law, which governs what happens to your property if you die without a will, when married individuals die in the same accident the state will recognize the marriage and accord the surviving spouse their rights as the surviving spouse. However, if one of the married individuals was merely in a civil union or domestic partnership, that relationship will not receive the same level of legal recognition as marriage. When married couples die in the same accident, the state will presume that the spouse with the longer life expectancy is the one who survived, leaving his or her property to that person rather than considering both spouses to have died concurrently.
Domestic partnerships in New Jersey were established by the Domestic Partnership Act, P.L. 2003, c.246. N.J.S.A. 26:8A-1 et seq . Domestic partnerships are defined as legally recognized relationships that combine two persons of the same sex (or one of each sex, under certain conditions relating to age) and meet the following criteria:
• Neither party may be married to, nor be in a civil union with, another person;
• Neither party may be a mentally incapacitated person;
• The parties must have both resided together for at least six months before filing their domestic partnership registry application;
• The parties must be party to a valid civil union agreement entered into under the laws of another jurisdiction that would have been valid in New Jersey;
• The parties cannot be more closely related, by blood or adoption, than permitted under the laws of this state for marriages between persons like them.
Like civil unions, the state protects the names of parties entering into a domestic partnership from being released to the public. N.J.S.A. 26:8A-6. However, once a domestic partnership is established under the law, the same rights granted to a spouse within the state are also extended to the parties to a domestic partnership. Protections to domestic partners include inheritance rights, tax benefits and responsibilities, property division upon dissolution, insurance benefits, parental rights and health care, workers compensation, pension benefits and other financial or employment-related benefits. Domestic partners may also take leave from employment to care for one another and are protected from discrimination on the basis of their domestic partnership status.
Qualifications for Domestic Partnerships
To qualify for a domestic partnership in New Jersey, individuals must meet specific requirements. To be eligible, the couple must be:
• Same-sex partners who are at least 18 years old (or 35 years old if the couple is a civil union couple);
• Each party a resident of New Jersey; and
• Unmarried and not in a civil union with anyone else.
A "marriage-like" relationship alone isn’t enough to qualify for a domestic partnership in New Jersey. The couple must also:
• Have a joint and substantial economic and financial relationship;
• Live together and share a permanent residence in New Jersey;
• Agree to be responsible for each other’s basic living expenses; and
• Provide each other with at least three of the rights of a spouse as listed under the Domestic Partnership Act.
Under the Domestic Partnership Act, individuals must give up certain rights or benefits (such as insurance, benefits and tax credits) that are not extended to domestic partners. These benefits include but are not limited to:
• Health insurance benefits, including prescription benefits;
• Living and disability benefits;
• Workers’ compensation benefits;
• Retirement benefits, including pension and insurance benefits;
• Inheritance and estate and gift tax benefits;
• Child custody, parenting time and support benefits (if applicable);
• Health care coverage and benefits;
• Workers’ compensation benefits;
• Credit union membership and benefits; and
• Benefits under tax laws, including credits, deductions and exemptions.
It’s important to note that a marriage must be legally recognized in order to give a widow/widower or a surviving civil union partner priority over other claimants to any benefits that provide that priority to a spouse.
All Rights and Benefits of Domestic Partners
According to the EDA, domestic partners and civil union partners have the same healthcare coverage as a married employee. There is a notable difference, however, between domestic partners and civil union partners when it comes to unemployment benefits. A civil union partner is considered a dependent of the employee who must provide more than half of the household, married couple’s, income. Domestic partners, on the other hand, must provide more than half of the household income, including the dependent income of their adult domestic partner.
New Jersey domestic partners are entitled to the same health benefits as married couples. New Jersey domestic partners are additionally entitled to inheritance rights, joint ownership of property, rights to insurance coverage and worker benefits, and "family" endorsement benefits that give visitation rights to partner’s in hospitals and rehabilitation facilities, insurance coverage, and the right to fully participate in family matters, such as when an immediate family member passes away.
Same sex domestic partners are also entitled to leave benefits under Federal law. The Family Medical Leave Act (FLMA) provides for up to 12 weeks of unpaid leave during any 12-month period for certain family and medical emergencies related to a spouse, parent, or child of the employee. Since their passage in 1993, licensing agreements for workplace benefits for same sex domestic partners has become commonplace.
How You Register a Domestic Partnership in NJ
To register a domestic partnership in New Jersey, both parties to the domestic partnership must jointly file a Declaration of Domestic Partnership with the Office of Vital Statistics and Registry in Trenton. To officiate this process, each party must to appear in person when filing the Declaration. In addition, the applicant is required to file or present the following documentation with respect to each applicant:
All foreign documents must be translated to the English language by a certified translator. In the event that any parties are unable to provide such documentation, the application may be submitted by filing a Request for Waiver of Documents not in English with the Office of Vital Statistics and Registry. Applicants shall be allowed to file this request at the same time as the Declaration.
There is a 72-hour waiting period after filing of the joint application for issuance of the Declaration. If a party is not able to obtain a copy of a required documents, the couple must submit such application no less than seven days prior to the requested domestic partnership date. Additionally, if the couple is submitting an application to amend the Declaration, they must wait at least 72 hours after filing of the application to get married or enter a civil union.
The fees for obtaining a domestic partnership include: $28.00 for filing the Declaration; $2.00 for the certified copies of the Declaration (up to two copies); $5.00 for a search of the Office’s records and issuance of a certification of a vital record; and $60.00 for amending a Declaration.
Once a Declaration is filed and a partnership is established, a couple in a domestic partnership should update all financial, insurance, mortgage and legal documents to reflect the change in status. This may include, but is not limited to, bank accounts, credit cards accounts, business interests, deeds, insurance material and wills.
Domestic Partnership and Marriage
In New Jersey, domestic partnerships and marriages share some similar characteristics, yet there are also many key differences, according to the New Jersey Department of Health. Below are a few of the main distinctions:
•Both relationships are formalized through a legal process, including a state license and a registered certificate.
•A domestic partnership is limited to same sex couples and opposite-sex couples over the age of 62 who are not entitled to Medicare benefits.
•Marriage provides a broader range of protections and rights, including some only available through marriage, such as Medicaid coverage, Veteran’s Administration benefits, 10-day survivor rights , Social Security benefits and dissolution rights that include equitable distribution and alimony.
•Inheritance rights of surviving partners differ. All property owned by a deceased partner passes to his or her domestic partner in the event of death. A spouse, however, has a right not only to residual property, but also to property legally obtained during the marriage.
•Domestic partners do not have a right to take a leave of absence from work under the family leave act, a right afforded to married individuals.
•Domestic partners may not file a joint tax return unless they both have federal and New Jersey taxable income.
•Domestic partner tuition benefits vary by school and are unlikely to be available at public schools.
Domestic Partners – Problems
While domestic partnerships in NJ afford a measure of rights and benefits to those who choose that status, there are still issues with recognition of the status both by society at large and by the courts. For instance, many people are not aware of the protections offered to domestic partners and still believe that the only option for same-sex couples is marriage. This leads to many situations where domestic partners cannot gain footing in a situation or even access property that is solely owned by their partner, or are denied certain benefits. Although many businesses have changed policies to make them inclusive of the LGBT community, others still find it difficult to identify which family relationships fall under their benefits. Visibility of domestic partnerships is increasing, as more benefits are being created in that arena. However, widespread discrimination is still a real concern for many New Jersey residents after sharing their lives with their partner for years on end, only to find that they are denied spousal rights due to the lack of legal recognition for their domestic partnership. The courts have yet to fully address all the issues surrounding the legal rights and interests of domestic partners. There is no official precedent relating to the division of property or financial interests upon dissolution of the relationship, so courts may choose to start from scratch in determining how to handle these matters. Domestic partners may have less protection than married couples, especially if the breakup is contentious. This could open the floodgates to any number of issues, which is an area of concern for many local attorneys and their clients.
Ending a Domestic Partnership
To end a domestic partnership, either one or both of the partners must file a Complaint for Termination of Domestic Partnership with the court. If both partners agree to the termination and the terms, they can sign a written agreement that addresses all terms of the termination, including alimony, equitable distribution of property, child support/visitation and/or custody issues. The court will review the agreement to ensure it is fair and equitable under the circumstances. One partner can then waive the two-month notice period required .
If only one partner files the Complaint, then the court will set a Supervised Economic Mediation appointment for the parties. If an agreement cannot be reached, the court will schedule at least one case management conference to address any issues before trial. These issues could include equitable distribution, alimony and child-related issues. If an agreement can be reached, the court will review the terms at the time of the settlement conference or hearing. If DCR has already been completed, only a Hearing is necessary to determine if the agreement is fair and equitable.