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NJSA 26:8A-1 Rights and Obligations of Domestic Partners in New Jersey

Procedural Requirements:

Establish Eligibility

Under N.J.S.A. NJSA 26:8A-1

A domestic partnership shall be established when all of the following requirements are met:

1. Both persons have a common residence within the State of New Jersey, or have a common residence in another jurisdiction and at least one of the persons is a member of a New Jersey State-administered retirement system, and both persons are otherwise jointly responsible for each other's common welfare as evidenced by joint financial arrangements or joint ownership of real or personal property, which shall be demonstrated by at least one of the following:

a. a joint deed, mortgage agreement or lease;
b. a joint bankaccount;
c. designation of one of the persons as a primary beneficiary in the other person's will;
d. designation of one of the persons as a primary beneficiary in the other person's life insurance policy or retirement plan; or
e. joint ownership of a motor vehicle;

2. Both persons agree to be jointly responsible for each other's basic living expenses during the domestic partnership;

3. Neither person is in a marriage recognized by New Jersey law or a member of another domestic partnership;

4. Neither person is related to the other by blood or affinity up to and including the fourth degree of consanguinity;

5. Both persons are of the same sex and therefore unable to enter into a marriage with each other that is recognized by New Jersey law, except that two persons who are each 62 years of age or older and not of the same sex may establish a domestic partnership if they meet the requirements of this section.

6. Both persons have chosen to share each other's lives in a committed relationship of mutual caring;

7. Both persons are at least 18 years of age;

8. Both persons file jointly an Affidavit of Domestic Partnership; and

Neither person has been a partner in a domestic partnership that was terminated less than 180 days prior to filing of the current Affidavit of Domestic Partnership, except that this prohibition shall not apply if one of the partners died; and, in all cases in which a person registered a prior domestic partnership, the domestic partnership shall have been terminated in accordance with the provisions shown below under terminating a Domestic Partnership.

"Affidavit of Domestic Partnership"

Affidavits of Domestic Partnership can be obtained from any local registrar's office of vital statistics at any municipality within the State of New Jersey.

An Affidavit of Domestic Partnership requires the applicants to provide their full name, date of birth, age, sex, and common residence.

Both applicants must present the completed Affidavit of Domestic Partnership and identification to a notary public and sign in the presence of the notary attesting that they meet the requirements for establishing a domestic partnership.


Filing the Affidavit of Domestic Partnership

The signed and notarized Affidavit of Domestic Partnership shall be presented to any local registrar of vital statistics at any municipality within the State of New Jersey. The Affidavit of Domestic Partnership must be accompanied by proof of at least one of the following:

1. a joint deed, mortgage agreement or lease;

2. a joint bank account;

3. designation of one of the persons as a primary beneficiary in the other person's Will;

4. designation of one of the persons as a primary beneficiary in the other person's life insurance policy or retirement plan; or

5. joint ownership of a motor vehicle;

Applicants whose common residence is not within the State of New Jersey must provide proof, by at least one applicant, of membership in a New Jersey state-administered retirement system as evidenced by one or more of the following documents issued by the New Jersey Division of Pension and Benefits:

1. Personal Benefits Statement from the current or previous calendar year;

2. 1099R from the current or previous calendar year; or

3. Certificate of Pension Membership.

Upon filing of the Affidavit of Domestic Partnership and payment of the appropriate fee the local registrar shall immediately complete a Certificate of Domestic Partnership.


Terminating A Domestic Partnership

The Superior Court of New Jersey shall have jurisdiction over all proceedings relating to the termination of a domestic partnership. The fees for filing an action or proceeding for the termination of a domestic partnership shall be the same as those for filing an action or proceeding for divorce.

Termination of a domestic partnership may be adjudged for the following causes:

a. voluntary sexual intercourse between a person who is in a domestic partnership and an individual other than the person's domestic partner;

b. willful and continued desertion for a period of 12 or more consecutive months, which may be established by satisfactory proof that the parties have ceased to cohabit as domestic partners;

c. extreme cruelty, which is defined as including any physical or mental cruelty that endangers the safety or health of the plaintiff or makes it improper or unreasonable to expect the plaintiff to continue to cohabit with the defendant; except that no complaint for termination shall be filed until after three months from the date of the last act of cruelty complained of in the complaint, but this provision shall not be held to apply to any counterclaim;

d. separation, provided that the domestic partners have lived separate and apart in different habitations for a period of at least 18 or more consecutive months and there is no reasonable prospect of reconciliation; and provided further that, after the 18 month period, there shall be a presumption that there is no reasonable prospect of reconciliation;

e. voluntarily induced addiction or habituation to any narcotic drug, as defined in the New Jersey Controlled Dangerous Substances Act or the Comprehensive Drug Reform Act of 1987,” or habitual drunkenness for a period of 12 or more consecutive months subsequent to establishment of the domestic partnership and next preceding the filing of the complaint;

f. institutionalization for mental illness for a period of 24 or more consecutive months subsequent to establishment of the domestic partnership and next preceding the filing of the complaint; or

g. imprisonment of the defendant for 18 or more consecutive months after establishment of the domestic partnership, provided that where the action is not commenced until after the defendant's release, the parties have not resumed cohabitation following imprisonment.

In the case of two persons who are each 62 years of age or older and not of the same sex and have established a domestic partnership, the domestic partnership shall be deemed terminated if the two persons enter into a marriage with each other that is recognized by New Jersey law.

In all such proceedings, the court shall in no event be required to effect an equitable distribution of property, either real or personal, which was legally and beneficially acquired by both domestic partners or either domestic partner during the domestic partnership.

The court shall notify the State Registrar of the termination of a domestic partnership.


Rights and Obligation of Domestic Partners

Pursuant to N.J.S.A. 26:8A-1 et seq., all persons in domestic partnerships shall be entitled to certain rights and benefits that are accorded to married couples under the laws of New Jersey, including statutory protection through the Law Against Discrimination against various forms of discrimination based on domestic partnership status, such as employment, housing and credit discrimination, visitation rights for a hospitalized domestic partner and the right to make medical or legal decisions for an incapacitated partner; and an additional exemption from the personal income tax and the transfer inheritance tax on the same basis as a spouse.

The obligations that two people have to each other as a result of creating a domestic partnership shall be limited to the provisions of the Domestic Partnership Act and those provisions shall not diminish any right granted under any other provision of law.

Upon termination of a domestic partnership, the domestic partners, from that time forward, shall incur none of the obligations to each other as domestic partners that are created by the Domestic Partnership Act or any other act.

A domestic partnership, civil union or reciprocal beneficiary relationship entered into outside of this State, which is valid under the laws of the jurisdiction under which the partnership was created, shall be valid in thisState.

Any health care or social services provider, employer, operator of a place of public accommodation, property owner or administrator, or other individual or entity may treat a person as a member of a domestic partnership, notwithstanding the absence of an Affidavit of Domestic Partnership filed pursuant to the Domestic Partnership Act.

Domestic Partners may modify the rights and obligations to each other that are granted by the Domestic Partnership Act in any valid contract between themselves, except for the requirements for a domestic partnership as set forth in the section of the Domestic Partnership Act governing eligibility to establish a domestic partnership.

Two adults who have not filed an Affidavit of Domestic Partnership shall be treated as domestic partners in an emergency medical situation for the purposes of allowing one adult to accompany the other adult who is ill or injured while the latter is
being transported to a hospital, or to visit the other adult who is a hospital patient, on the same basis as a member of the latter's immediate family, if both persons, or one of the persons in the event that the other person is legally or medically incapacitated, advise the emergency care provider that the two persons have met the other requirements for establishing a domestic partnership as set forth in the Domestic Partnership Act; however, the provisions of this section shall not be construed to permit the two adults to be treated as domestic partners for any other purpose as provided in the Domestic Partnership Act prior to their having filed an Affidavit of Domestic Partnership.

A domestic partner shall not be liable for the debts of the other partner contracted before establishment of the domestic partnership, or contracted by the other partner in his/her own name during the domestic partnership. The partner who contracts for the debt in his/her own name shall be liable to be sued separately in his/her own name, and any property belonging to that partner shall be liable to satisfy that debt in the same manner as if the partner had not entered into a domestic partnership.

Pursuant to N.J.S.A. 26:8A-5, a former domestic partner who has given a copy of the Certificate of Domestic Partnership to any third-party to qualify for any benefit or right and whose receipt of that benefit or enjoyment of that right has not otherwise terminated, shall upon termination of the domestic partnership, give or send to the third-party at last known address of third-party, written notification that the domestic partnership has been terminated. A third-party that suffers a loss as a result of failure by the domestic partner to provide this notice, shall be entitled to seek recovery from the partner who was obligated to send notice for any actual loss resulting thereby. Failure to provide notice to a third party shall not delay or prevent the termination of a domestic partnership.

We recommend for individuals in domestic partnerships
1) Will
2) Power of Attorney
3) Living Trust
4) Occasional Trust
5) Prenuptial Agreement where appropriate

26:8A-3Ê Definitions relative to domestic partners.

3. As used in sections 1 through 9 of P.L. 2003, c.246 (C. 26:8A-1 through C. 26:8A-9) and in R.S. 26:8-1 et seq.:

"Affidavit of Domestic Partnership" means an affidavit that sets forth each party's name and age, the parties' common mailing address, and a statement that, at the time the affidavit is signed, both parties meet the requirements of this act for entering into a domestic partnership and wish to enter into a domestic partnership with each other.

"Basic living expenses" means the cost of basic food and shelter, and any other cost, including, but not limited to, the cost of health care, if some or all of the cost is paid as a benefit because a person is another person's domestic partner.

"Certificate of Domestic Partnership" means a certificate that includes:Ê the full names of the domestic partners, a statement that the two individuals are members of a registered domestic partnership recognized by the State of New Jersey, the date that the domestic partnership was entered into, and a statement that the partners are entitled to all the rights, privileges and responsibilities accorded to domestic partners under the law.Ê The certificate shall bear the seal of the State of New Jersey.

"Commissioner" means the Commissioner of Health and Senior Services.

"Domestic partner" or "partner" means a person who is in a relationship that satisfies the definition of a domestic partnership as set forth in this act.

"Have a common residence" means that two persons share the same place to live in this State, or share the same place to live in another jurisdiction when at least one of the persons is a member of a State-administered retirement system, regardless of whether or not:Ê the legal right to possess the place is in both of their names; one or both persons have additional places to live; or one person temporarily leaves the shared place of residence to reside elsewhere, on either a short-term or long-term basis, for reasons that include, but are not limited to, medical care, incarceration, education, a sabbatical or employment, but intends to return to the shared place of residence.

"Jointly responsible" means that each domestic partner agrees to provide for the other partner's basic living expenses if the other partner is unable to provide for himself.

"Notice of Rights and Obligations of Domestic Partners" means a form that advises domestic partners, or persons seeking to become domestic partners, of the procedural requirements for establishing, maintaining, and terminating a domestic partnership, and includes information about the rights and responsibilities of the partners.

L. 2003, c. 246,s.3.
Ê
26:8A-4Ê Affidavit of Domestic Partnership; establishment, requirements.

4. a. Two persons who desire to become domestic partners and meet the requirements of subsection b. of this section may execute and file an Affidavit of Domestic Partnership with the local registrar upon payment of a fee, in an amount to be determined by the commissioner, which shall be deposited in the General Fund.Ê Each personshall receive a copy of the affidavit marked "filed."

B. A domestic partnership shall be established when all of the following requirements are met:

(1)Both persons have a common residence and are otherwise jointly responsible for each other's common welfare as evidenced by joint financial arrangements or joint ownership of real or personal property, which shall be demonstrated by at least one of the following:

(a)a joint deed, mortgage agreement or lease;

(b)a joint bank account;

(c)designation of one of the persons as a primary beneficiary in the other person's will;

(d)designation of one of the persons as a primary beneficiary in the other person's life insurance policy or retirement plan; or

(e)joint ownership of a motor vehicle;

(2)Both persons agree to be jointly responsible for each other's basic living expenses during the domestic partnership;

(3)Neither person is in a marriage recognized by New Jersey law or a member of another domestic partnership;

(4)Neither person is related to the other by blood or affinity up to and including the fourth degree of consanguinity;

(5)Both persons are of the same sex and therefore unable to enter into a marriage with each other that is recognized by New Jersey law, except that two persons who are each 62 years of age or older and not of the same sex may establish a domestic partnership if they meet the requirements set forth in this section;

(6)Both persons have chosen to share each other's lives in a committed relationship of mutual caring;

(7)Both persons are at least 18 years of age;

(8)Both persons file jointly an Affidavit of Domestic Partnership; and

(9)Neither person has been a partner in a domestic partnership that was terminated less than 180 days prior to the filing of the current Affidavit of Domestic Partnership, except that this prohibition shall not apply if one of the partners died; and, in all cases in which a person registered a prior domestic partnership, the domestic partnership shall have been terminated in accordance with the provisions of section 10 of P.L. 2003, c.246 (C. 26:8A-10).

c. A person who executes an Affidavit of Domestic Partnership in violation of the provisions of subsection b. of this section shall be liable to a civil penalty in an amount not to exceed $1,000.Ê The penalty shall be sued for and collected pursuant to the "Penalty Enforcement Law of 1999," P.L. 1999, c.274 (C. 2A:58-10 et seq.).

L. 2003, c.246,s.4.


For a confidential appointment, contact KAV at 732-572-0500

About the Author:
Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately 17 miles north of Princeton. He often lectures for the New Jersey State Bar Association on personal injury, criminal / municipal court law and drunk driving. He has published 125 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges.
In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, Arbitration hearings and contested administrative law hearings.
Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court), with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.


KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: NJLaws.com


Kenneth Vercammen was the Middlesex County Bar Municipal Court Attorney of the Year
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Kenneth Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week for litigation and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer.

He is chair of the Elder Law Committee of the American Bar Association General Practice Division. He is also Editor of the ABA Estate Planning Probate Committee Newsletter and also the Criminal Law Committee newsletter. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award. And past Winner "General Practice Attorney of the Year" from the NJ State Bar Association. He is a 22 year active member of the American Bar Association. He is also a member of the ABA Real Property, Probate & Trust Section.

He established the NJlaws website which includes many articles on Elder Law. Mr. Vercammen received his B.S., cum laude, from the University of Scranton and his J.D. from Widener/Delaware Law School, where he was the Case Note Editor of the Delaware Law Forum, a member of the Law Review and the winner of the Delaware Trial Competition.

RECENT SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE

Edison Adult School -Wills, Elder Law & Probate- 2007, 2006, 2005, 2004, 2003, 2002 [inc Edison TV], 2001, 2000,1999,1998,1997
Nuts & Bolts of Elder Law - NJ Institute for Continuing Legal Education/ NJ State Bar ICLE/NJSBA 2008, 2007, 2006, 2005, 2004, 2003, 2002, 2000, 1999, 1996
Elder Law and Estate Planning- American Bar Association Miami 2007
Elder Law Practice, New Ethical Ideas to Improve Your Practice by Giving Clients What They Want and Need American Bar Association Hawaii 2006
South Plainfield Seniors- New Probate Law 2005, East Brunswick Seniors- New Probate Law 2005
Old Bridge AARP 2002; Guardian Angeles/ Edison 2002; St. Cecilia/ Woodbridge Seniors 2002;
East Brunswick/ Halls Corner 2002;
Linden AARP 2002
Woodbridge Adult School -Wills and Estate Administration -2001, 2000, 1999, 1998, 1997, 1996
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Wills and Elder Law - Metuchen Adult School 1999,1997,1996,1995,1994,1993
Clara Barton Senior Citizens- Wills & Elder Law-Edison 2002, 1995
AARP Participating Attorney in Legal Plan for NJ AARP members 1999-2005

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