This topic discusses the law concerning Oregon registered domestic partnerships, the legal impact of partnering in Oregon without registering and the effect in Oregon of entering into same-sex relationships that are recognized in other jurisdictions. This topic does not cover transgender issues in any substantive manner.
The Status of Same-sex Marriage in Oregon
Under the Oregon Constitution, same-sex couples may not marry, nor may same-sex marriages validly performed in other jurisdictions be recognized by the state. That means that regardless of having a marriage certificate from another jurisdiction, the state of Oregon will continue to treat the couple as if they are not married. Federal law currently prohibits recognition of same-sex marriage for all federal purposes, and allows states to not recognize other states’ valid same-sex marriages. There are currently several federal cases challenging this federal law on the basis that it violates the U.S. Constitution; however the Supreme Court has not been asked to review the validity of the law. Also, the U.S. attorney general has determined that the law is unconstitutional, so that office will no longer defend the law. Nonetheless, because of the uncertainty around the issue, same-sex couples validly married elsewhere must be careful to not rely on their marriage to protect them in the way that heterosexual couples can rely on their marriages.
What is a Registered Domestic Partnership, Who can Use it and What Protections Does it Provide?
As of February 2008, gay and lesbian couples (but not opposite sex couples) are permitted to “register” as “domestic partners” under the Oregon Family Fairness Act. It is important to note that a registered domestic partnership is
not the same as a domestic partnership registered in a city or county. (Most city and county registrations were discontinued following enactment of the law that permits state-recognized domestic partnerships.) Once registered, the parties to the registered domestic partnership (or “RDP”) are entitled to any privilege, immunity, right, benefit or responsibility that the state of Oregon provides or imposes to the same degree as parties to a marriage. It is very important to note that partners in an RDP do not get any benefits married people get under federal law. It is also important to note that in most states, Oregon’s RDP will not be recognized, and couples who are registered will be treated as if they have no legal relationship to one another. It is unclear whether states that currently have domestic partnerships, civil unions or marriages for same-sex couples will recognize Oregon’s RDP.
Some examples of state-conferred benefits include:
Availability of spousal support after dissolution of a registered domestic partnership
Ability to file joint Oregon tax returns (though you still must file federal separately)
Availability of tenancy by entirety
Right to inherit without a will or use the “spousal election”
Dissolution procedures similar to divorce
Spousal privilege in legal proceedings
Hospital visitation
Right to your partner’s medical information
Standing for “wrongful death” suits
Upon death of a partner, the right to obtain personal effects, make burial arrangements, receive an autopsy report and have “personal representative” priority.
Right to workers’ compensation benefits if partner is disabled or killed on the job
Who is Eligible to Register a Domestic Partnership?
There are six eligibility requirements for each of the partners who wish to register a domestic partnership. Each of the partners must be:
- At least 18 years old
- Not married or in a domestic partnership
- Capable of consenting to the partnership
- Not nearer of kin than second cousins
- Of the same sex
- A resident of Oregon (at least one partner)
What Must Partners do to Register?
To register, the partners must file with the county clerk a “Declaration of Domestic Partnership” that is signed and notarized by both parties and pay a filing fee of about $60. No solemnization by a judge or religious person is necessary. Do not confuse county registration with state registration, even though you go to the county office to obtain both. The state registration, Oregon Registration of Domestic Partnership (RDP) is the status that ensures treatment similar to married couples in Oregon.
The registered domestic partners should obtain a certified copy of their Declaration of Domestic Partnership from the county clerk. This is the document that the parties may be asked to show to prove entitlement to state-conferred rights.
Parent-parent Birth Certificates
Currently, Oregon is providing “parent-parent” birth certificates to lesbian couples who have children through artificial insemination. At the hospital, ask to be given the necessary forms. A parent-parent birth certificate will protect your child for purposes of Oregon state law, but it may not be recognized by other states or the federal government. Please talk to an attorney if you are pregnant, or if you have had a child together and the mother who is not the biological mother has not adopted. The Oregon Vital Records department does not provide parent-parent birth certificates for male couples who have children with a surrogate. In such cases, the fathers should speak to an attorney about how to establish their legal parentage.
Child Custody and Visitation
Courts may not make decisions involving child custody or visitation based on sexual orientation or gender identity. A court will make decisions involving child custody and visitation based upon the best interest of the child. Even in cases in which a party is leaving a marriage and who is gay, lesbian or bisexual, in numerous cases Oregon courts have awarded custody or visitation rights to a gay or lesbian parent. The non-gay party who attempts to limit a gay person’s access to a child must show some serious harm to the child resulting from the gay parent’s sexual orientation before a gay parent will be denied visitation or custody of his or her child. Similarly, although there are no reported cases concerning custody for transgendered persons, the same general concept of best interests of the children will apply, and gender identity should not be an issue unless it can be shown to have a negative impact on the child beyond the stigma the child may experience due to discrimination.
As noted above, do not assume any other state will recognize an Oregon registered domestic partnership. If you plan to move or travel to another state, check first. Always take certified copies of the Declaration of Domestic Partnership (and birth certificate and judgment of adoption, if applicable) with you.
Same-sex couples should not assume that being registered will meet all their legal needs. The presumptions the state makes about spouses may not apply to their own particular circumstances, including how to divide property upon death or dissolution. Couples should obtain the following legal instruments after they register as domestic partners under the new law:
Durable power of attorney
Advanced directive
Burial instructions
Wills & other estate planning documents
Second parent adoptions
Domestic partnership agreements
After you’ve registered
Under Oregon law, couples entering into a registered domestic partnership may change their names using the same procedure that heterosexual couples use after obtaining a marriage certificate. However, most federal agencies are refusing to accept domestic partnership certificates as proof of legal name change. Thus, most attorneys are recommending that a partner who wishes to legally change his or her name go through the process necessary to get a judgment of name change.
Couples should be cautioned about signing up as domestic partners if one or both partners are receiving public assistance from the state (both partners’ income might be included for means-testing) or one or both partners do not want the rights and obligations that are provided now
or that may be provided in the future.
One important distinction between an unregistered domestic partnership and an RDP is that an RDP must be dissolved in the same manner as a marriage. In other words, in order to terminate the legal relationship, a petition to dissolve the relationship must be filed in state court and a judgment of dissolution must be entered. As noted above, spousal support may be available depending on the circumstances. The partners’ property will be divided legally based upon rules used in dissolving marriages. If one party is cut off from funds by the other, the court may require the party holding the money to pay the other party so he or she can hire an attorney. Even if both partners cease to reside in Oregon, the circuit courts of Oregon will retain jurisdiction for actions to obtain a judgment of dissolution.
Dissolving a Registered Domestic Partnership
Persons who obtain an RDP who wish to end the legal recognition of that relationship must “dissolve” the relationship through the courts using the same statutory rules as married people. The rules concerning the division of property obtained during the registration are the same as marriage, including the presumption that the partners equally contributed to bringing the property into the relationship. That rule has not applied to same-sex couples prior to availability of registration. Rather, prior to passage of the RDP law, when couples broke up, if asked, a court would divide their property according to the intent of the parties. The parties’ intent was often difficult to prove. An open question is how the court will divide property for persons who had long-term relationships prior to registering. Persons in such situations are advised to seek legal counsel, as the property division issues could be very complicated.
Other rules that apply to registered couples are the ability to ask the court to award attorney fees and the provision for partner support (akin to spousal support or alimony).
Dissolving Relationships Legally Entered Into Elsewhere
Many Oregon same-sex couples have registered or have entered into civil union in other states or have married in a state or country where it was legal to do so. Virtually all states and countries where same-sex couples may marry, register or enter into a civil union have “residence” requirements ranging from six months to years. Many couples never were residents and those who are now Oregon residents cannot meet the residence requirement. Some Oregon judges have been terminating those relationships on the theory that they have the equitable power to do so, as failure to do so would create a serious injustice due to the virtual impossibility of legally dissolving the relationship in any other state. If you have a legally recognized relationship from another state or country, you are advised to seek counsel, as failure to dissolve the non-Oregon relationship may have dire unanticipated consequences.
What are My Rights and Responsibilities in an Unmarried/Unregistered Relationship?
If you live with your partner without being married or registered, you must take certain legal steps if you want to make sure that you and your partner have rights and obligations similar to those that married or registered couples have. A partnership contract can be used to establish the rights and duties of each person in the relationship. A will can be used to provide for the distribution of property at death so that property does not automatically pass to legally recognized family members. Partners may purchase homes with a right of survivorship. Partners can own cars, furniture, bank accounts and investments in both names. A person can appoint a partner as a health care representative by filling out a form. The court can establish parental rights for children, even if only one member of the couple is the legal parent. You can protect yourself and your partner by proper attention to the legal aspects of your relationship.
Even if you do not have a written partnership contract, the court may be able to divide property and may be able to establish custody, visitation or support for children when a couple separates. If you have been in an unmarried or unregistered relationship that is coming to an end, you should ask a lawyer about your options.
What is the Effect of Registration of a Domestic Partnership with the County or the City?
Registration in a city or county merely provides evidence that your domestic partnership existed as of the date of such registration. Such registration does not somehow “convert” to a state Registration of Domestic Partnership. It is necessary to actually register with the state to obtain most of the benefits of registration, such as certain tax benefits.
Legal editor: Beth A. Allen, October 2011
