A Domestic Partnership Agreement, also commonly called a Joint Property Agreement or a Living Together Agreement, is a document that explains the contractual legal rights and responsibilities of each partner when a couple decides to form a long-term committed relationship and own property together. At this time same sex partners cannot legally marry or enter into civil unions in Georgia, and even having a Commitment Ceremony does not grant any legal rights to a same sex couple or even to a couple who chooses not to legally marry. Therefore, a Domestic Partnership Agreement is an important legal document for any unmarried, gay, lesbian, bisexual and transgender relationships, since rights between same sex and unmarried couples are governed by principles of contract law, not family law.
In the event of potential disputes, misunderstandings or death, a Domestic Partnership Agreement can help clarify ownership of property, provide guidance for dividing property in the event of a separation, and specify a dispute resolution mechanism such as mediation or arbitration prior to the commencement of litigation to resolve disputes.
Child custody cases involving domestic partners are often complex. If the child is the offspring of an unmarried heterosexual couple, the paternity of the child may be in question, requiring legitimation. Other than marrying the child's mother, legitimation is the only way that the father of a child born in the state of Georgia may establish legal rights to his child. Even if you are listed as the father on the child’s birth certificate, if you are not married to the child's mother, you must file for an Order of Legitimation before seeking custody or visitation.
However, if the domestic partners are a non-traditional couple, establishing parental rights may be more difficult. A domestic partnership agreement that outlines the terms of custody and visitation can help. Either way, child custody matters between domestic partners tend to be more complex than those between divorcing couples simply because the law is not as clear.
JNJ LAW also recommends unmarried and same sex couples possess the following documents:
Revocable Living Trust
A Living Trust distributes property much the same way a Will does, but it accomplishes the distribution without probate court supervision or interference. Instead, a less expensive, less time-consuming, private process is used. The only technical difference is that the title to property is in the name of the Living Trust, and you, or you and your spouse, are the trustees. Because the property is not technically in your name when you pass on, it does not have to go through probate. Many Living Trusts also incorporate credit shelter provisions to maximize tax savings for your heirs.
Privacy is another benefit often cited by Revocable Living Trust users. When a person passes on, his or her Will becomes a public document accessible to anyone. Any salesman may go into the probate court, see what your estate was worth and which heirs received an inheritance, what their addresses are, and begin soliciting them. A Living Trust may never be seen by anyone other than the trustee(s). According to statistics, Wills are also far more likely to be successfully challenged than Living Trusts.
JNJLAW strongly believes that cases where people have a primary goal of avoiding hassles for their heirs, then they should use a revocable living trust to distribute even a modest estate. Many other attorneys recommend using a Will instead because they either do not fully understand the advantages a living trust provides.
Last Will and Testament
A Will is the most common document used for giving away possessions after death. This writing instructs a probate court on distributing your assets after all of your bills are paid. Which heirs get which items or what percentage of the estate, when it goes to them, and how taxes are handled are explained in a properly drafted Will. It can also include legally binding instructions on the desired type of funeral service and burial you want, list the people you want to administer your estate, name those you want to take custody of minor children, and outline any age restrictions on the people receiving bequests.
Overall, a Will is better than nothing, but it is not nearly as versatile as a Living Trust. In addition to handling the distribution of your property, a Will can also save money on estate taxes, keep money in trust for young beneficiaries, and provide guardianship nominations.
Advance Directive for Healthcare (formerly known as a Living Will)
It is especially critical for unmarried, gay, lesbian, bisexual and transgender people to know that if you do not have a Georgia Advance Directive for Health Care naming your partner or a friend as your agent, the hospitals and courts will look to your closest biological family member to make health care decisions for you. This means your partner or friend will have no legal right to make such decisions, or in some cases, to even visit you in the hospital. Without this document, your partner or friend will also not be able to claim your body after death or direct the disposition of your remains.
Durable Power of Attorney for Finances
If you do not create a durable power of attorney for finances naming your partner or a friend as agent and a Trust is not in place, no one will be able to manage your finances unless a guardianship proceeding is filed in court, and your closest biological family members will have priority of appointment.
In addition, JNJ LAW can prepare the following:
Name Change petition
Second Parent Adoption
Power of Attorney for Minor Children
If a same sex couple has children, unless they have accomplished a second parent adoption through the Superior Court, the non-biological parent will have no legal standing to pick up the child from school, or make any medical decisions for the child. A Power of Attorney for Minor Children allows the biological or adoptive parent to give authority to the non-biological or non-adoptive parent to be involved in educational and medical decisions for the child.
For more information, see our FAQs concerning Non-Traditional Relationships.
I am excited to announce that, effective Monday, February 13, I joined the law firm of Stearns-Montgomery & Proctor located in Marietta. The firm has a staff of experienced attorneys and office personnel that will allow me to focus solely on providing the best legal service available.
My new office address is 291 Alexander Street, Marietta, GA 30060 and you may reach me at 770.426.1148.