Domestic Partnership Agreements: FAQs

Domestic Partnership Agreements. Clasping hands.

This final installment of a 7-part series about domestic partnership agreements answers frequently asked questions (FAQs) about them.

What is a Domestic Partnership Agreement?

A domestic partnership agreement (DPA) is a contract between two unmarried who don’t intend to marry each other.  A domestic partnership agreement expresses define a couple’s property and support rights during the course of their relationship or when it ends. The relationship may end while both are alive or when one dies. Domestic partners can contract to: (1) procedures for handling their support, expenses, and finances while they are together; (2) support if they separate;
(3) dividing their assets and liabilities when they separate; (4) define their rights in each other’s estate upon death or disability.  

What are the requirements for a valid domestic partnership agreement in Florida?

Contract requirements apply to domestic partnership agreements: offer, acceptance, a meeting of minds on all essential terms, exchange of legal consideration, and not violative of Florida law or public policy. As with prenuptial agreements, for a valid domestic partnership agreement, each person should: (1) Exchange legal consideration apart from any express or implied agreement regarding sexual relations; (2) Make fair and sufficient financial disclosure to each other; (3) Have an independent attorney; (4) Have sufficient time to review and understand the draft agreement, schedules, and financial disclosures; (5) Observe the formalities for signing, such as having correct notarization and witnesses when the domestic partnership agreement covers real property or death rights.

What are the advantages or benefits of a domestic partnership agreement? 

Committed couples who don’t intend to marry should consider defining their rights and obligations by contract. Domestic partnership agreements have advantages that outweigh a couple’s leaving their fate to a court system. Such contracts provide great flexibility and certainty for couples binding their lives together. Benefits and advantages of having a domestic partnership agreement include: (a) Documenting the couple’s desire to be in a committed and equal partnership; (b) Creating certainty as to the disposition of property of each person during the partnership, and also on separation, disability, or death; (c) Clarifying each person’s duties and rights during their relationship; (d) Clarifying each person’s duties and rights if ever their relationship ends; (e) Reducing the chance of a dispute upon separation or disability; and (f) Allowing the couple to choose ways to resolve disputes, such as the collaborative process or mediation, other than by fighting in court.

What are the disadvantages of a domestic partnership agreement?

If done improperly, domestic partnership agreements can cause confusion and invite litigation. Further, there may be disadvantages to the person giving up rights under Florida law by signing a domestic partnership agreement. The domestic partners don’t intend to marry when they sign a domestic partnership, but may later decide to marry. They’ll likely have to revisit the domestic partnership agreement and sign a premarital (prenuptial) agreement. If they don’t, they risk having their future financial affairs on divorce or death left up to a judge applying Florida law.

How do Domestic Partnership Agreements in Florida work?

Domestic partnership agreements work much the way premarital (prenuptial) agreements or postnuptial agreements do for parties who are marrying or have married. In a domestic partnership agreement, parties can recite their rights, obligations, emotional commitment to each other, financial understandings, and, if applicable, co-parenting responsibilities. Provisions regarding children are subject to approval by a judge looking out for a child’s best interests.

Are domestic partnership agreements only for same-sex couples?

No. domestic partnership agreements aren’t limited to same-sex couples. Two people of any gender identity who don’t intend to marry each other may contract in writing for their property and support rights during their relationship and when it ends.

How are domestic partnership agreements (DPAs) different from prenuptial agreements?

Both types of written, legal agreements between two people who intend to bind their lives together. Domestic partner agreements are between two adults who don’t intend to marry each other. Such agreements define what happens to property and support if their relationship ends or one dies. In contrast, marriage contracts are between two people who plan to marry or are married. If signed before they marry, such agreements are called prenuptial agreements, prenuptial agreements, or antenuptial agreements.  But if the couple signs such agreements after they marry, they’re called postnuptial agreements or, if they’re divorcing or separating, marital settlement agreements. With limited exceptions, such as for temporary support, valid marriage contracts override the spouses’ property and support rights and obligations under Florida divorce law. But domestic partnership agreements typically fill in what Florida law otherwise leaves silent and undefined.

Does Florida recognize domestic partnership agreements?

Yes. Written domestic partnership agreements are contracts Florida law recognizes as binding contracts. In Florida, no legal rights or duties flow from mere cohabitation. Unless there are grounds not to enforce a written domestic partnership agreement – fraud, misrepresentation, overreaching, coercion, duress, illegality – Florida courts will enforce a written agreement between two unmarried, cohabitating people. In Posik v. Layton, 695 So. 2d 759 (Fla. 5th DCA 1997), the Florida Fifth District Court of Appeal held that a support agreement entered into by a lesbian couple was binding and enforceable. The court described the agreement as a nuptial agreement entered into by two parties the state prohibits from marrying. The court held that, even though Florida prohibited same-sex adoptions (that was the case in 1997, but no longer) and same-sex marriages, Florida has not prohibited the type of agreement between the same-sex partners.

What is a constructive trust between unmarried people?

A judge may impose a constructive trust between unmarried people to prevent an unjust enrichment of one person at the expense of another because of fraud, undue influence, abuse of confidence or mistake. Wadlington v. Edwards, 92 So. 2d 629 (Fla. 1957). Such a remedy is up to the judge and is for extraordinary cases. The purpose of a constructive trust is to restore property to the rightful owner and prevent unjust enrichment. The partner who seeks a constructive trust must establish it by proof to the exclusion of all reasonable doubt. For a court to impose a constructive trust, the court must find: (1) One party made a promise, express or implied, to the other; (2) The party transferred property in reliance on the promise; (3) The parties had a confidential relationship with each other; and (4) Allowing the party to keep the property would unjustly enrich the party.

Domestic Partnership Agreement Water Droplet Rain on WoodUsing the Collaborative Process for Negotiating a Domestic Partnership Agreement

The Collaborative Process can assist a couple with negotiating a domestic partnership agreement.  A full collaborative team includes a lawyer for each party, a neutral financial professional, and a neutral mental health professional may work with the parties in negotiating a domestic partnership agreement or, if the parties intend to marry, a premarital agreement.

The couple and their collaborative team meet together.  First, they identify each person’s goals and interests. Next, they work on gathering and exchanging financial information. Together, they explore best options and their lawyers work on an agreement expressing the couple’s decisions. 

In collaborative settlement agreements, the parties may agree to submit any future disputes to an agreed-upon collaborative process, even using the same team as the one used during negotiations.

Read more about Florida Domestic Partnership Agreements: 

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