New York Divorce attorney on DOMESTIC PARNTERSHIPS

What is a domestic partnership and what are your rights if a domestic partnership ends?

A domestic partnership could be between same sex couples are well as heterosexual couples. I have not found any case law that suggest it could be between more than two people though. All the cases involve either a man and a woman who were living together without benefit of marriage, or a same sex couple. (I theorize, however, that as the case for the traditional “marriage” deteriorates in the coming years, domestic partnerships will be de rigeur, marriage will become obsolete, and even polygamous relationships will be given faith and credit so long as the parties reside under one roof, hold themselves out as a “family unit” and have the wherewithal to reduce their relationship to air tight contracts.)

For now, more and more people are drafting up domestic partnership agreements than ever before. Because the agreement is really a “contract” these cases are usually tried under “contract and/or partnership law” principles.

In New York, there are still those cases where the “partners” did not have a formal written agreement and the agreement has to be construed by the court. See this case, Morone v. Morone 50 NY 2d 481, 429 NYS 592, 413 N.E 2d 1154 (1980). In that case, the parties “held themselves out as husband and wife.”  They had kids together. She claimed that they had an oral agreement that she would perform housewifely duties, be the stay at home mom for his kids and he would provide support and that they would split proceeds from his business transaction. The court upheld this agreement even though it was not in writing. In subsequent cases such as Dombrowski v. Somers 41 NY 2d 858 393 NYS 2d 706, the court stated that oral domestic partnership agreements must be “clear and definite and specific.” In Braschi v. Stahl Associates, a domestic partnership agreement was construed to allow a gay man to inherit the rent stabilized apartment of his deceased lover. In Braschi, the court concluded that:

the term family as used in the New York City Rent and Eviction Regulations, should not be rigidly restricted to those people who have formalized their relationship by obtaining, for instance, a marriage certificate or adoption order.

In California, the court allows “implied” agreements to be upheld. But in New York, implied agreements are not upheld.

The test for deciding if an domestic partnership agreement will be enforced–if it is not in writing–seems to turn on what were the intentions of the parties at the time the agreement was made, their conduct in private and in the community they live, and what they promised each other and the clearness, and specificity of the agreement they seek to uphold. But, as in the McCall v. Frampton case 81 AD 2d 607, 438 NYS 2d 11 (2d Dept 1981) the claims have to be based on past services, and not for future earnings.

Oh, and the domestic partnership agreement cannot use “sexual conduct as one of the terms or consideration for the contract.”

Source: New York Law of Domestic Relations by Alan D. Scheinkman

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