June 2008
A Family Law Practitioner’s Guide To Navigating the Domestic Partnership Expansion Bill
by Elizabeth Hershman-Greven and Justin M. Sedell
In April 21, 2007, Governor Christine Gregoire signed the Domestic Partnership Registration Act into law. This was a monumental day for Washington’s same-sex couples and their families and friends, as well as for opposite-sex couples where one partner is over the age of 62. The Act established a domestic partnership registry that is administered by the Secretary of State, and at present, more than 3,700 couples have registered. However, the Act conferred only approximately 30 of the nearly 500 state-conferred privileges and obligations of marriage to domestic partners. The majority of the rights and responsibilities granted in the 2007 Act concern medical decision-making rights and after-death planning for a deceased partner.
This year, new legislation was introduced to dramatically expand the number of rights and responsibilities conferred on Washington’s domestic partners. The House bill passed 62–32 on February 14, 2008, and the Senate bill passed 29–20 on March 4, 2008. Governor Christine Gregoire, who has been a vocal supporter of domestic-partnership rights, signed the bill into law on March 12, 2008. It will go into effect on June 12, 2008.
The new law is a major addition to the 2007 Act that offers far more rights and obligations to Washington’s domestic partners. It will affect the practice of law in a variety of fields in addition to family law, including estate planning, probate, guardianships, and criminal law. All attorneys should become familiar with these new statutes so that their clients may benefit from them as soon as possible.
Terminating Domestic Partnerships
Of critical importance, the 2008 Act will dramatically affect the way state-registered domestic partnerships are terminated. Under the 2007 Act, parties to the domestic partnership must file a signed and notarized “Notice of Termination” with the secretary of state and pay a $50 filing fee. If the notice is signed and notarized by only one party, that party must also serve the other party in compliance with the Act. The secretary of state then issues a “Certificate of Termination” to both parties 90 days after the notice is filed and the fee paid.
The 2008 Act adds a new section to RCW 26.60 that requires state-registered domestic partners to terminate their partnerships via a dissolution action in Superior Court. An exception was created to allow for fast-track dissolutions when all of the following conditions exist at the time of filing the Notice for Termination:
• The Notice of Termination is signed by both parties;
• Neither party has children under the age of 18, whether born or adopted before or after the registration of the domestic partnership, and neither of the domestic partners, to their knowledge, is pregnant;
• The state-registered domestic partnership is not more than five years in duration;
• Neither party has any ownership interest in real property, whether inside or outside of Washington; or has a lease that does not satisfy certain requirements detailed by the Act;
• The parties must not have any unpaid obligations in excess of $4,000 incurred by either or both of them after registration of the domestic partnership, excluding the amount of any unpaid obligation with respect to an automobile;
• The total fair market value of community property assets, net of encumbrances, including any deferred compensation or retirement plan, is less than $25,000 and neither party has separate property assets, net of encumbrances in excess of that amount;
• The parties must have executed an agreement setting forth the division of assets and liabilities of the community property and must execute any and all documents necessary to effectuate that agreement;
• The parties must waive any rights to partner maintenance; and
• Both parties desire the domestic partnership to be terminated.
Superior court domestic-partnership dissolution actions will be filed as family law actions under RCW 26, rather than as civil complaints. As in a dissolution of marriage, partners will be permitted to bring a motion for temporary orders during the course of partnership dissolution to request temporary maintenance, child support, and parenting plans.
This new termination process may prove difficult in our modern society where people move from state to state, or even country to country, with regularity. Washington’s state-registered domestic partners who move to states that do not recognize Washington state partnerships will not be able to dissolve their partnerships in those states, nor will they be able to meet Washington’s residency requirements for a dissolution action. The Act does not provide any guidance as to how these couples may dissolve their relationships other than by returning to Washington.
Substantive Changes to Domestic Relations Law
The new legislation authorizes the courts to provide maintenance in actions for dissolution of domestic partnerships on the same grounds as in divorce proceedings. Currently, same-sex couples can file a civil action for division of “community-like” property and debts acquired during their “meretricious” or “intimate committed relationships,” but there is no authority for an award of maintenance. This will continue to be the law for unmarried opposite-sex couples and same-sex couples who do not register their partnerships with the state, although the 2008 Act seems likely to impact the evolution of this “intimate committed relationship doctrine” (also known as “meretricious relationship doctrine”).
The new legislation also contains interesting provisions regarding parenting and child support. The legislation amends RCW 26.09.050 to provide that in entering a decree of dissolution of domestic partnership, the court shall make provision for a parenting plan for any minor child of the domestic partnership and shall make provision for the support of any child of the domestic partnership entitled to support. Thus, at first blush, it seems that RCW 26.09.050 creates parental rights for any children raised by domestic partners.
However, the legislation does not amend RCW 26.26.011, which defines a “parent” as an individual who has established a parent-child relationship under RCW 26.26.101. This statute defines a mother as a woman who has 1) given birth to the child; 2) been adjudicated a mother; 3) adopted the child; 4) entered into a valid surrogate agreement under which she is the intended mother of the child; or 5) donated her eggs or served as a surrogate carrier and has effectuated the necessary paperwork to bind her as a parent. This definition of “mother” does not include a non-biological mother of a child born of the state-register domestic partnership through artificial insemination to her partner, the child’s biological mother.
The same statute defines a father as man who 1) had a child in the context of a legal marriage (presumption of paternity); 2) signed an Acknowledgement of Paternity that was not rescinded or successfully challenged; 3) adopted the child; 4) consented to assisted reproduction by his wife; or 5) entered a valid surrogate agreement under which he is the intended father of the child. This definition of “father” does not include the non-biological father of a child born through a surrogacy arrangement to his partner, the child’s biological father.
This creates a disconnect between RCW 26.09.050 and RCW 26.26.011. How can the court enter a parenting plan when one partner may not have parental rights to the children in question? Although this is likely to be a litigated issue, parental rights will still be established through the traditional means.
Until this is fully resolved, it is imperative that all same-sex couples with children, including state-registered domestic partners, continue to take advantage of Washington state’s second-parent adoption process. If they do not, they may face the devastating reality that the courts will not consider them the child’s legal parent for custody purposes, although it may do so for child-support purposes. If the courts do not consider non-biological parents who failed to adopt their partner’s biological children as legal parents, these persons will be limited to seeking parental rights under the de facto parentage or nonparental custody doctrines. It is unclear if a de facto parent has the same legal rights and responsibilities as a legal parent. Moreover, de facto parentage is a very difficult, if not impossible, battle to win if the child in question is too young to have formed a lasting, meaningful bond with the non-biological parent.
Conclusion
Representing same-sex couples will have entirely new aspects now that the 2008 expansion bill has been signed into law. Instead of focusing on meretricious relationships and community-like property, family law attorneys representing clients registered as domestic partners can now apply the great majority of RCW 26.09 upon the dissolution of the clients’ relationships. Although there will be many parallels to dissolutions of marriage, there will still be critical differences for registered domestic partners, including the opportunity for qualified partnerships to go through the fast-track dissolution.
The law affects many other legal areas in addition to family law and will have a significant impact on how many of us litigate these types of cases. As was the case in California, Washington’s domestic-partnership registry may not finish expanding until registered partners have all the same privileges and obligations as married couples in our state. As these rights keep growing, keeping a close eye on these changes will become more and more critical for family law attorneys in Washington.
Elizabeth Hershman-Greven and Justin M. Sedell are senior associates with McKinley Irvin PLLC in Seattle.
