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Same Sex and Opposite Sex Marriage v. Domestic Partnerships

May 13, 2018

When two consenting adults are involved in a romantic relationship in the state of New York, they have the right to be married regardless of whether they are a same-sex or opposite-sex couple. In certain localities, these couples can also enter a domestic partnership rather than being married. There are differences between domestic partnerships and marriage. In New York, the Marriage Equality Act became law during the summer of 2011. This act allowed for same sex marriages to occur in the state. Before the law was passed, New York state recognized same sex marriages that had been performed in other states where same sex marriage was legalize, but it would not allow same sex marriage to take place within the state.

Domestic Partnership laws in the state are laws that vary depending on the jurisdiction. These law allow for couples in certain localities to register their relationship as a domestic partnership if the relationship meets certain predetermined criteria. Some jurisdictions only give domestic partnership status to same sex couples, although some also give domestic partnership status to opposite sex and same sex couples.

The Difference Between Domestic Partnerships and Marriages

One of the biggest issue that differs based on domestic partnerships and marriages is the question of visitation rights and child custody. Children that are born to married couples in the state are presumed to belong to each spouse. However, this presumption can be rebutted when a court allows for a DNA test or paternity petition to be filed by another individual claiming that they are biologically the father of a child that has been born to a married lesbian couple. The legal premise for the presumption of legitimacy has fluctuated for some time now and remains a developing area of the law, especially with the advent of new legal queries surrounding gay marriage. Meanwhile, people in a domestic partnership are not given the right to seek visitation or custody of their partner’s biological children. Domestic partners can explore the option of adoption, but domestic partnerships do not have any paternal rights alone. Marriage includes the presumption of legitimacy for both spouses; domestic partnerships do not.

When a couple is married, they receive property rights regarding the assets that each partner acquires over the time of the marriage. If a divorce proceeding is initiated, any marital property will be subject to court orders for equitable distribution. But domestic partnerships do not need to have their property distributed when they break up. Domestic partnerships do not include the same property rights and property acquisition that marriages do by law. In the same way, marital debt might be divided between spouses upon divorce, but domestic partners never accrue marital debt. All debts in a domestic partnership are solely the responsibility of the party that incurred the debt. Domestic partners also cannot seek spousal maintenance or support following a divorce, but married couples in New York can. To end a marriage, a divorce proceeding must be initiated; to end a domestic partnership, all that must be filed is a simple termination affidavit.

Depending on the local laws and the health plan involved, a domestic partner might be eligible to receive healthcare through their partner’s plan. Married couples have access to this benefit as well. The difference here is that domestic partners may have tax consequences on their income for using their partner’s health plan; married couples do not face these tax consequences. If you’re uncertain whether there would be tax consequences to being on your partner’s plan, you can contact a tax professional to ask. Other differences in taxes include that married couples can jointly file their taxes while domestic partners cannot.

Domestic partners and married couples both have the right to visit their partner in jail or at a hospital. They can also both stay in rent-controlled apartments. Spouses and domestic partners of New York City corrections officers, police, and firemen might be eligible for financial awards.

The laws regarding domestic partnerships vary depending on the locality. Some localities inside Nassau County allow domestic partnerships to be filed. Suffolk County has a law about domestic partnerships which requires that both partners must reside in Suffolk County, be at least eighteen years old, not be married or in a domestic partnership with any other parties either at the time of or six months before their registration, not be related by blood, be in a close relationship, have lived together for at least one year, complete any required affidavits, and submit two or more documents which prove that the partners are financially interdependent. Couples can be registered when they meet this criteria or provide this documentation.

Before the legalization of same sex marriage in 2011, domestic partnerships were the only official partnership available to gay couples. Domestic partnerships were introduced as a way to give gay couples rights to essential things like jail and hospital visits. However, because of the aforementioned differences between domestic partnerships and marriages, the State Supreme Court ruled that same sex marriage must be made legal. For same sex couples to be denied the rights of married couples was a form of discrimination. The definition of marriage was then changed from “one man and one woman” to “two consenting adults.”

People may still choose to become domestic partners rather than a married couple, though. This option is sometimes exercised by couples who are serious about each other but do not want to make a marriage commitment. The easier break up proceedings are a benefit of a domestic partnership over a marriage. Some people choose domestic partnership so that they retain financial responsibility on an individual basis as well. And some people choose domestic partnership because they do not want to be assumed responsible for their partner’s current or future children.

We are New York lawyers who handle questions about domestic partnerships and marriages. If you have questions about your legal rights in your marriage or domestic partnership, give us a call.

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