Domestic Partnership vs. Civil Union: What’s the Difference?

• How domestic partnerships and civil unions evolved
• What is a civil union?
• What is a domestic partnership?
• Who can enter a domestic partnership or civil union?
• Dissolving these unions
• What about the kids?
• Common-law marriage

Over the past several years, our legal definition of marriage in the United States has changed dramatically. In 2015, same-sex marriage became federal law with the U.S. Supreme Court’s Obergefell v. Hodges ruling. Now, all states must legally recognize same-sex marriage. 

Before this decision, the rights of same-sex couples were hard-won – and when they were, they were legislated by each state. Some states and cities recognized same-sex marriages while others continued to ban them outright. Still other states offered alternatives to marriage in the form of domestic partnerships and civil unions. 

Prior to Obergefell v. Hodges, domestic partnerships and civil unions offered serious legal protections to same-sex couples. But because they are overseen by individual states, those rights have been inconsistent and don’t always cross state borders. Still, some couples continue to opt for a domestic partnership or civil union as an alternative to marriage. 

How did domestic partnerships and civil unions evolve?

When couples marry, they are immediately given critical legal rights that are federally recognized and protected. But before the legalization of same-sex marriage, these were only granted to heterosexual couples with the legal right to marry.

In the early 1980s, same-sex marriage advocates started fighting for recognition of their relationships. They wanted a system that gave them the right to enter into relationships with some legal protections toward each other. 

Although they saw marriage as their ultimate priority, it didn’t gain broad traction, and domestic partnerships and civil unions evolved to fill the void. Vermont became the first state to recognize civil unions in 1999, with many states and other jurisdictions following suit. But rights and protections varied broadly from state to state, and federal rights were missing altogether until 2015’s momentous decision.

What is a civil union?

A civil union is a relationship status that became legally recognized by some states as a response to these needs. Civil unions offer many of the same legal protections to couples as marriage does, including the following:

• Health insurance benefits for both partners
• Inheritance rights and death benefits for both partners
• The right to make financial or medical decisions for a partner, if necessary
• Property ownership rights
• Adoption and parental leave rights
• Sick or bereavement leave rights
• Visitation rights regarding hospitalization or incarceration

But unlike marriage, a civil union does not give partners other essential rights to Social Security benefits, veteran’s benefits, and other key benefits only conferred on legally married partners.

Today, four states recognize civil unions: Colorado, Illinois, Hawaii, and New Jersey. All of the existing civil unions in Connecticut, Delaware, New Hampshire, Rhode Island, and Vermont were converted into legal marriages after federal same-sex marriage laws were passed.

What is a domestic partnership?

Similar to a civil union, a domestic partnership is another relationship status recognized by states, including California, the District of Columbia, Maine, Nevada, Oregon, Washington, and Wisconsin. 

Like civil unions, domestic partnerships can protect an unmarried couple’s legal rights to property ownership, adoption, health insurance, inheritance, the ability to make important legal decisions for their partner, and other matters. And like civil unions, domestic partnerships are legislated at the state level. Consequently, those rights may only extend to the border of that state and not be recognized by others. 

Is there a difference between a domestic partnership and a civil union? While laws concerning both vary from state to state, in most cases, the terms are a matter of semantics. Both have offered an alternative to marriage that has protected important legal rights for same-sex couples and, often, opposite-sex couples.

Who can enter into a civil union or domestic partnership?

Committed, unmarried couples who share a residence and finances may decide to enter into a civil union or domestic partnership. These statuses can extend to both same-sex and opposite-sex couples, depending on state laws. 

In general, to be eligible for a civil union or domestic partnership, couples must:

• Be at least 18 years of age
• Not be married to or the partner of anyone else
• Not be related in any way that would have been prevented by marriage laws
• Live together
• Live in a jurisdiction where a domestic partnership or civil union is an option
• Have agreed to be mutually responsible for their financial lives
• Have agreed to be mutually responsible for each other’s welfare
• Be mentally competent to understand and agree to the partnership or union

To apply for a civil union or domestic partnership, both partners must fulfill all eligibility and appear at the designated county or city offices with proof of identity and residence. An application must be signed in the presence of the issuing authority. 

After the application is made, a license or domestic partnership affidavit will be issued. This must be signed and certified by an authorized party. Typically, anyone authorized to perform a wedding can sign and certify the license or affidavit and perform a civil ceremony. Once the license is signed, the couple has a limited amount of time to record it with the county records, which will formalize the union.

Dissolving a domestic partnership or civil union

Civil unions and domestic partnerships are legally binding contracts and, as such, must be legally dissolved. The procedure for ending these relationships, like entering into them, varies from state to state. 

In many states, dissolving a domestic partnership or civil union is similar to a divorce and subject to similar issues of property division, child custody and child support, and spousal support. 

But in some states, domestic laws are reserved for married couples only, and there are no laws that provide for the division of property, child or spousal support, custody, or visitation for civil or domestic partners. In these cases, partners may be forced to take legal action against each other to resolve these matters. This can make dissolving these relationships complicated and far more costly. Couples may benefit from creating cohabitation or domestic partnership agreements before or during their partnerships specifically for these situations. 

What happens to the children when a domestic partnership or civil union ends?

Like other matters surrounding domestic partnerships and civil unions, states determine how physical and legal custody will work when a relationship ends. 

When both parents are legal parents, i.e., biological parents or non-biological parents who have legally adopted the child, each partner will have equal rights to custody or visitation. The court will then consider all facts to decide what is in the best interests of the child. But if only one partner is the legal parent, the state may or may not give the other partner parental and visitation rights. Unfortunately, this means that the non-legal parent may have no right to sue for custody or visitation. 

As always with matters of child custody and visitation, the court will make every effort to do what is best for the child and may consider a partner’s relationship with the child, but parental rights in these situations are never a given. 

Are domestic partnerships and civil unions the same as common-law marriage?

Today, common-law marriage is recognized in Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah. 

Common law marriage involves a couple who has lived together over time, shared finances and resources, and consistently referred to themselves as spouses. While common-law marriage, domestic partnerships, and civil unions have many similarities, there are some legal differences. 

Like civil unions and domestic partnerships, each state defines what is considered a legal common-law marriage. For some states, these couples are granted the same federal legal rights as married couples, but civil or domestic partners may not be. In other states, domestic partnerships and civil unions confer the same benefits as a common-law marriage. 

While domestic partnerships and civil unions have protected critical rights for many couples who continue to choose them as an alternative to marriage, they can also have their own legal pitfalls. At Hello Divorce, we can help our clients who are navigating these partnerships with legal advice, services, and resources that fit their needs.

Schedule a free 15-minute call to see how we can help.