Brought to you by LACBA’S Remedies Section
November 28, 2007




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Domestic Partners and Remedies

BY:  Mel Aranoff, Esq., Partner
Horgan, Rosen, Beckham & Coren, LLP 

Should an attorney seeking or defending against an application for pre or post-judgment remedies expect to find any different treatment for domestic partners, than when dealing with married couples? Remedies practitioners have often debated pursuing remedies against one spouse for the liabilities of the other spouse, based on community property theories. Four years ago, the California Legislature mixed up the issue a bit, by enacting the “California Domestic Partner Rights and Responsibilities Act of 2003.” Family Code §297.5 provides that as of January 1, 2005, almost all of the rights, benefits, protections and obligations that apply to spouses under California law, during and upon termination of the union would be applied to registered domestic partners. It is important to note that to be registered, the parties have to register with the Secretary of State. If it is determined that they registered with a county or city (which is often done for the purpose of putting a partner on their health insurance), then they are not registered under the Act.

Thus, all of the same rules which applied to dealing with married couples, including distinctions between liability of the community for contractual or tort-based obligations, as provided for in the Family Code, apply to registered domestic partnership arrangements. As an example, just as a joinder would be required to reach a non-debtor’s separate property but not for the purpose of enforcing a debt against the parties’ community property (see Reynolds & Reynolds Co. V. Universal Forms, Labels & Systems, Inc. (CDCA 1997)965 F. Supp. 1392, 1396), the same procedure would apply with respect to registered domestic partners. 

One reported case dealing with this was In re: Maria J. Rabin (Bkrtcy, N.D. Cal., 2005)336 B.R. 459. That decision dealt with separate Chapter 7 bankruptcies filed by registered domestic partners. They each scheduled a 50% interest in their primary dwelling, and claimed separate $75,000 homestead exemptions. The couple had purchased a home together in San Francisco, prior to registration, and resided in it as their homestead. The Trustee sold the property and objected to the separately claimed exemptions. The bankruptcy court  cited Code of Civil Procedure §704.730(b)for the proposition that the homestead exemption must be apportioned between spouses in accordance with their proportionate interests in the homestead. 

The court noted that the only two exceptions to equal treatment of married couples and domestic partners related to the filing of tax returns and treatment of earned income for state income tax purposes. The Debtors in Rabin sought different treatment from married couples by citing the language of Code of Civil Procedure §703.110 which only references the requirement of a single exemption “if the judgment debtor is married.” The bankruptcy court determined that the California legislature showed no intent to treat domestic partners in a manner that was different from the treatment of married couples, and therefore sustained the trustee’s objection to the separately claimed homestead exemptions. 

There is no reason to expect other courts to find legislative intent to have different outcomes in dealing with pre and post-judgment remedies issues. Since domestic partnerships and dissolutions are now part of the public record, those seeking to enforce judgments should investigate the existence of such arrangements, and proceed in the same manner as if dealing with a married couple.