Domestic Partnership: What Is It?
A Domestic Partnership is a legal relationship between two individuals. It can be an alternative to marriage, but it is not set up as a substitute for marriage. Some people don’t want to get married for any number of reasons (including religion, financial matters, funeral and health matters). Some people can’t get married if they are already married. In Illinois, this is most often because their divorce hasn’t been finalized yet.
Since the passage of the Illinois Equal Marriage Opportunity Act in 2013, same-sex couples have had the right to marry . They do enjoy the same rights and benefits that traditional married couples enjoy. Opposite sex couples are not legally permitted to marry if one of the spouses was previously married and the divorce from which they are getting married with is not yet finalized.
Domestic partnerships are not a new concept. Many communities and businesses offer domestic partner benefits in recognition of the value of these relationships. When domestic partnerships were created, it gave recognition of these relationships in various ways, including benefits such as workers’ compensation benefits and insurance coverage.
Illinois Law and Domestic Partnership
In Illinois, domestic partnerships hold a legal status separate from traditional marriage. Under the Illinois Domestic Partners Act, couples must file a Declaration of Domestic Partnership with a county or city clerk, as well as meet specific criteria to be granted a domestic partnership. The law currently has specific eligibility requirements, including that both partners must have chosen to share an intimate and committed relationship of mutual caring, be at least 18 years old, not be related, and agree to be responsible for each other’s basic needs, among other regulations. Unlike spouses in a traditional marriage, a domestic partnership does not hinge on one party being a legal citizen or resident of the state.
On June 1, 2011, the Illinois Religious Freedom Protection and Civil Union Act went into effect, granting same-sex couples the same rights as married couples. All existing domestic partnerships were automatically converted to civil unions under the new law, which goes further than the San Francisco ordinance by expanding the domestic partner benefits from city to state level.
The new law defines civil unions as "a commitment entered into by two persons, 18 years of age or older, of the same or different sex that is legally recognized in Illinois and grants to the partners in the civil union all the same benefits, protections, and responsibilities under the law," specifying that it must be registered with a government authority and that all existing same-sex domestic partnerships automatically qualify as civil unions. However, this legalized protection for same-sex couples is far from ubiquitous across the United States, as emphasized by the National Conference of State Legislatures, which identified only 18 other states which grant domestic partnerships civil unions or other similar rights and more than 30 other states which have laws explicitly stating that marriage is only between a man and a woman.
Registering for Domestic Partnership in Illinois
The process for entering into a domestic partnership with your same-sex partner in Illinois is simple and easy. Additionally, the cost of filing the paperwork is relatively inexpensive. In particular, the law mandates that in Cook County, for example, the requested registration fee may not exceed $35 and in all other counties, the fee may not exceed $10.
With the passage of the Illinois Religious Freedom Protection and Fairness Act (RFFFA), same-sex couples who are registered as civil unions in Illinois prior to June 1st were automatically transitioned to marriage. Nonetheless, domestic partnerships remain an available option in Illinois. In fact, a domestic partnership is an alternative to marriage and is less formal than a civil union. For example, domestic partners are not required to file a certificate of domestic partnership with the county recorder of deeds, as would be required for a civil union. On the other hand, while both are similar in terms of the rights and benefits conferred as a result of entering into a legally recognized same-sex relationship, domestic partnerships generally afford fewer benefits than a civil union.
In order for a domestic partnership to become legally recognized, couples must fill out a form called Application for Domestic Partnership Certificate. This form can be accessed on the website of the circuit court clerk for each county, or offices of the Secretary of State.
With respect to the Application for Domestic Partnership Certificate, it must include:
o A statement of the applicant’s and the domestic partner’s name
o A statement that the partnership has been formed in accordance with the Illinois Domestic Partnership Registration Act
o In addition, a copy of the Certificate of Domestic Partnership must also be filed.
After completing the application form and obtaining the signed Certificate of Domestic Partnership, you should file the paperwork with the Circuit Clerk in your own county. On this point, applicants may file in person or through the mail. If applying by mail, you have to obtain a money order for the fee, which is attached to the application. Regardless of how you apply for the certificate, your application must be accompanied by the required fee and all documentation listed above. Upon filing, the Clerk will issue a certificate documenting the registration of the domestic partnership.
Legal Rights & Responsibilities of Domestic Partners
A domestic partnership provides several legal rights and obligations for partners. Notably, in Illinois, partners enjoy the same rights as spouses in regard to property and estate issues under the Illinois Marriage and Dissolution of Marriage Act (IMDMA).
Property rights
A domestic partnership agreement can help define how property will be allocated, and also protects if a partner dies. While IMDMA doesn’t automatically include domestic partners in its definition of non-marital property, a domestic partnership agreement can memorialize the nature of the ownership interests of each partner. In addition, if a partner dies without a will, all assets in his or her name go to his or her domestic partner. If he or she has a will, the domestic partner would get the greater of $200,000 or half of the estate plus one quarter of the balance of the estate.
Healthcare decisions
As with spouses, domestic partners are allowed to make medical decisions for each other in case of a health crisis. Some hospitals may even require a domestic partnership affidavit to be signed in order to be allowed to participate in treatment decisions.
Financial support
Domestic partners are eligible for the same types of benefits as couples who are legally married. This includes healthcare coverage, survivor benefits and same-sex spousal Social Security benefits.
Divorce
Divorce between domestic partners can be more complicated than simple dissolution of marriage under IMDMA because there is no IMDMA mechanism for distributing property, allocating parental responsibilities or providing for child support. If a domestic partnership agreement exists, it can be referenced for guidance. Otherwise, adult partners must refer to the laws of contracts. Of course, if the domestic partners have children, Illinois Child Support Services (CSS) is available to provide advice and assistance in a child support matter.
Advantages & Disadvantages of Domestic Partnership
Undoubtedly, there are potential benefits of domestic partnerships that do not exist in traditional marriages. While the benefits of taxes, rights and estate planning are generally similar to marriage, a few differences do exist. For instance, virtually all health care plans include domestic partners but employer plans may only cover spouses. Another potential advantage is that Illinois domestic partners may be able to combine their income without incurring the marriage penalty that is common under the joint filing status for married individuals.
While the benefits of domestic partnerships may seem enticing, consider that there may also be a case where such a partnership may be just as risky as traditional marriage, or even riskier. Because domestic partners are not afforded the same treatment as legally recognized spouses, they remain financially vulnerable if they decide to end the relationship. Ordinarily, when a couple files for divorce, a fair division of martial assets is generally carried out. Domestic partners do not typically have the same rights. The Domestic Partners Health Benefits and Responsibilities Act does provide for financial support as well as distribution of property in certain conditions, but there are certain limits and restrictions in place that would not otherwise exist in a traditional marriage or civil union .
It may also be worth exploring the fact that domestic partners do not receive many of the protections given to legal spouses. These include but are not limited to: the survivorship benefit on military pensions, spousal support (alimony), maintenance, insurance and tax benefits, and even the ability to make decisions for your partner in the case of incapacitation. In such cases, it often becomes necessary to draft a separate power-of-attorney document in order to expand upon these rights and protect them should such a situation occur.
Additional challenges to entering into a domestic partnership may stem from the terms outlined in the Domestic Partners Health Benefits and Responsibilities Act. For example, parties must be at least 18 years old and unmarried. They must also not be related by blood unless the relationship is one that would ban marriage. In addition, the partners must have been living together in a shared household for at least 12 continuous months, agree intent to reside in a bonded relationship as a married couple, and must share the responsibility of goods and bill payments.
Terminating a Domestic Partnership in Illinois
Dissolving a domestic partnership in Illinois is similar to divorce, but there are key differences. Illinois recognizes domestic partnerships in a variety of forms. In some, domestic partners have a written partnership agreement. In other forms, an oral agreement may exist between the parties, and ultimately, the parties will need to file a petition with the court to bring the domestic partnership to a close. The process is the same for same-sex or opposite-sex couples.
Another type of domestic partnership in Illinois falls within the Declaratory Judgments Act, 735 ILCS 205/1 et seq. Under this form of domestic partnership, couples petition the court for a declaration of their domestic partnership. This partnership is the equivalent of a marriage for the purposes of the Illinois Insurance Code, the Illinois Pension Code, rights of bereavement, and hospital visitation rights. To terminate a domestic partnership under this form, partners must file a petition for Declaratory Judgment and request that the court terminate the partnership in the same manner it began.
A third form of domestic partnership in Illinois is known as a Declaration of Domestic Partnership. This term is commonly used to refer to couples who register as domestic partners, including same-sex and opposite-sex couples. This form is recognized under the Illinois Health Insurance Portability and Accountability Act, 215 ILCS 5/356z.2. Under this law, a partner can designate another as an agent for decisions concerning health care, insure each other for health care decisions, and designate one another as a primary beneficiary for health care benefits. In Illinois, unlike many other states, domestic partners have the same insurance rights as spouses.
Like domestic partnerships formed under the Declaratory Judgments Act, 735 ILCS 205/1 et seq., to terminate partnership registered under the Illinois Health Insurance Portability and Accountability Act, 215 ILCS 5/356z.2, partners must file a petition to declare the partnership void. The court will conduct a hearing on the matter, and may grant the petition if the party has given the other notice of the hearing, or provides a summary of the reasons for termination of the partnership. (The summary must be 5 pages or less in length.) Termination of a domestic partnership under the Domestic Violence Act, 750 ILCS 60/1 et seq., will be permitted if both partners agree to the termination.
Under the Domestic Violence Act, 750 ILCS 60/1 et seq., a court may sever a domestic partnership when one party petitions the court for an order of protection. Once the order is entered, the court may also dictate where the property will go.
Because the laws regarding domestic partnerships in Illinois are still developing, it is important for an experienced attorney to assist you in filing for and terminating a domestic partnership.
Legal Alternatives
Alternative legal arrangements to a domestic partnership may offer some of the same benefits and rights as a domestic partnership. However, they also have their own legal processes and requirements. Separate from a domestic partnership, a Civil Union has many of the same rights. In fact, Civil Unions were created to provide similar rights that marriage does, such as exemptions from taxes, benefits of inheritance of a partner’s estate, property rights, creation of joint insurance plans and immigration rights.
Attorneys in Chicago IL may also add an attachment to your domestic partnership to further define other areas of your couple’s life. This is often referred to as a Domestic Partnership Agreement. This legally binding contract allows partners to plainly define many aspects of their daily life together, such as finances, property ownership, and even children .
An attorney specializing in a domestic partnership in Chicago can advise partners on how they may legally create a contract that provides even more rights and benefits. For example, adoption rights, and divorce or separation provisions may be included in a contract, despite not being available under Illinois law. In fact, a Domestic Partnership does not allow adoption in Illinois.
Other legal arrangements include surnames. Unmarried couples may adopt each other’s last name according to Section 220 of the Illinois Compiled Statutes. The parties may select which name they wish to use and include both last names within their contract.
Attorneys in Chicago IL can help partners determine what type of arrangement may be right for their own situation. A variety of laws apply to partners, including Section 215-220 of the Illinois Compiled Statutes, under the Illinois Domestic Partnerships Act.