Marriage vs. Domestic Partnerships: Val Kleyman, NYC Divorce Attorney 

What is a marriage? If you ask most Americans, the answer to that question will likely include the phrase “committed relationship,” and also some combination of love, trust, honesty, and agreement.  A marriage is often all of those things.  But often so are domestic partnerships, civil unions, cohabitation relationships, and a variety of other ways in which people pledge care and commitment to one another.  According to NYC divorce attorney, the differences between all of these types of relationships are not just semantic; Federal, State, and even sometimes City law define each differently, confer specific rights and obligations upon the participants of each, and set out the requirements to create and dissolve each, with very different consequences.

Many Americans still view domestic partnerships as an alternative that existed for same sex couples prior to the legalization of same sex marriage.   Because marriage is now legal throughout the country, regardless of sex or gender, I, as a NYC divorce attorney, get asked why domestic partnerships still exist – why, in 2020, would a couple choose a domestic partnership over a legal marriage, or the other way around?

In New York City, here are some of the major differences between Domestic Partnership and Legal Marriage:

Entering into the relationship

It is relatively easy, in New York City, to become domestic partners, or to become married spouses: both involve a personal appearance at the office of the county clerk, paperwork, payment of a fee, and proof of your identity and age.  To become domestic partners, you must also prove both parties are residents of New York, which is not a requirement to marry.

Benefits and Obligations

Among many other benefits afforded participants of both types of relationship, much focus is placed on a few in particular: 1) both spouses and domestic partners are eligible to be covered by their spouse/partner’s health insurance, and 2) both spouses and domestic partners may visit their spouse/partner in the hospital, nursing home, or health care facility, as a family member.

Many benefits, however, are only available to spouses, and are not available to domestic partners.  For example, domestic partners: 1) do not benefit from state income tax advantages; 2) cannot take out insurance policies on their partners; 3) do not have the right to spousal privilege or confidential marital communications in legal proceedings; 4) do not receive death benefits through workers’ compensation; and 6) inheritance rules do not apply as they do for spouses, although, in New York City, a domestic partner is eligible to remain in a rent-controlled apartment as a “family member.”

Dissolving the relationship

 The formalities of dissolving both types of relationship, like the formalities to enter into them, involve paperwork, payment of fees, and a trip to the county clerk.  If both parties are in agreement, the relationship can be dissolved on consent.  If only one party appears to file the papers, they must show proof that the paperwork has been served on the other person.

Many rights are created in a marriage, however, that are not created in a domestic partnership, and have serious consequences at the time of dissolution:

  1. There is a presumption in New York that all property acquired while married is joint property, to be divided at divorce. Domestic partners, however, have no such right.  Property purchased during a domestic partnership is joint only if it is titled in joint name, and is subject to general property laws with regard to its division.
  2. A business opened by spouses is also treated as marital, to be divided in accordance with domestic relations law. A business opened by domestic partners is viewed by the courts as a business opened by two individuals.
  3. There is a requirement in New York that spousal support be provided to the less-monied spouse for a period of time following a divorce. There is no such requirement for domestic partners, and no such right is created in a domestic partner that could be pursued in Family Court.
  4. There is a presumption that children born during the marriage are the children of both spouses, and so custody, visitation, and payment of child support must be determined as a part of a divorce. There is no presumption that children born during a domestic partnership are the children of both parties.  For domestic partners to establish paternity, custody, visitation, and child support, they would need to initiate separate proceedings in Family Court.

As a NYC divorce attorney, I handle these issues very often. In a divorce proceeding, all of the above issues (if not decided by the spouses by agreement) can be handled in one court, by one judge.  For domestic partners, litigation related to children would need to take place in Family Court – with paternity and support in front of a Magistrate, and custody/visitation in front of a Judge; litigation with regard to property and finances would need to take place in any number of different courts depending on the specific circumstances.  Regardless of whether you are dissolving a marriage or a domestic partnership, there are potentially many things that will require the assistance of competent NYC divorce attorney.