Domestic Partnership Agreement (Complex)
AGREEMENT, made this _____ day of _________, 20__, between _______________, residing at
______________________ [hereinafter referred to as “_____________”], and ________________, residing at
_______________________ [hereinafter referred to as “______________”].
WHEREAS, the parties intend to establish a domestic partnership and raise children together, and desire to set forth their agreements and expectations regarding their financial, property, and other rights and obligations arising out of the contemplated domestic partnership; and,
WHEREAS, by execution of this Agreement, the parties hereby revoke and nullify any and all written agreements previously executed by either or both parties; this Domestic Partnership Agreement supersedes any and all previously executed or unexecuted Domestic Partnership Agreements between the parties;
NOW, THEREFORE, in consideration of the mutual promises and agreements herein contained, the parties hereto agree as follows:
1. Separate Property of Each Party
The parties wish to identify what will remain the separate property of each party during the domestic partnership, and to determine their rights in the event of a separation or dissolution of their domestic partnership, as hereinafter discussed.
The following shall constitute and remain the “separate property” of the respective parties: (a) property, whether real or personal, and whether vested, contingent, or inchoate, belonging to or acquired by a party prior to the contemplated domestic partnership of the parties, including without limitation the property listed on Schedules A-1 and A-2; (b) all property acquired by a party at any time by bequest, devise, inheritance, distribution from a trust, or by gift; (c) salary, wages, and other compensation for personal services; (d) retirement and pension benefits; (e) compensation for personal injuries; (f) proceeds of insurance policies received from any sources; (g) the increase in value of such property, whether or not such increase in value is due in whole or in part to the contributions or efforts of the other party; (h) rents, issues, profits, dividends, interest, or other income derived from other distributions upon such property; (i) the proceeds of the sale of such property; (j) property acquired in exchange for such property or acquired with the proceeds of the sale of such property; (k) any other property identified or defined as separate property elsewhere in this Agreement; and (l) any assets or property acquired at any time by either party in their singular name or jointly with another person. It is the agreement of the parties that unless property is denoted in this Agreement as joint property, it shall be considered separate property. Except as otherwise expressly provided in this Agreement, or by way of an addendum to this Agreement, each party shall be responsible for his/her own debts, unless a debt was undertaken in a joint manner, as evidenced by the documents creating such debt. Each party hereby indemnifies and holds harmless the other for any debt incurred by the party that is not a joint debt.
Except as otherwise expressly provided in this Agreement, each party shall keep and retain sole ownership, enjoyment, control, and power of disposal of his/her separate property of every kind and nature, now owned or hereafter acquired by such party, free and clear of any interest, rights, or claims of the other party by reason of the domestic partnership or otherwise. These rights include the right to dispose of his/her separate property by gift, sale, testamentary transfer, or in any other manner, and to encumber, pledge, or hypothecate such property.
Each party covenants and agrees not to make any claim or demand on the separate property of the other party or on the heirs, legal representatives, executors, or administrators of the other party with respect to the separate property of the other party, except as otherwise may be expressly provided in this Agreement.
If the parties commingled their separate property to acquire new property, the interests of the parties in this new property shall be separate property interests in proportion to their original contributions to the acquisition of such property.
Except as otherwise expressly provided in this Agreement, the separate property now or hereafter owned by one party can become joint or the property of the other party only by a written instrument reclassifying the property for purposes of this Agreement executed by the party whose separate property is thereby reclassified. No acts, conduct, or statements by either party shall change the status of separate property, other than an instrument executed by the party whose separate property is thereby reclassified.
No contribution by either party to the care, maintenance, improvement, custody, or repair of the separate property of the other party, whether such contributions are in the form of money, property, or personal services rendered, shall in any way alter or convert any of such separate property, or any increase in the value thereof, to the status of joint property. Any contributions by either party to the care, maintenance, improvement, custody, or repair of the separate property of the other party shall become part of the separate property of the other party, and the contributing party shall not have any claim for reimbursement. No use by either party of earnings or other separate property for joint or household expenses shall be construed to imply joint ownership of such assets.
Each party agrees, upon request, to cooperate with the other in connection with procuring loans secured by the other party’s separate property, including the execution of instruments waiving all rights with respect to the other’s separate property. The party owning the separate property shall indemnify and hold the party requested to execute such instruments harmless from and against any liability with respect thereto. Any proceeds derived from loans secured by a party’s separate property shall be said party’s separate property.
2. Joint Property
The parties recognize that they may from time to time acquire property in their joint names. This may include, for example, sums deposited into bank accounts in their joint names and stock and bond portfolios, certificates of deposit, and money market funds in their joint names.
Title to any and all savings accounts, certificates of deposit, money market certificates, cash reserve accounts, money management accounts, stocks, bonds, savings plans, securities, or any other funds or assets of the same or a similar nature (other than joint checking accounts) acquired jointly by both of the parties during the domestic partnership shall be placed in the names of both parties hereto in such manner that such assets may not be withdrawn or disposed of without the signatures of both parties thereto.
All gifts given to the parties jointly shall be the joint property of the parties. Any gifts given from one party to the other prior to or during the domestic partnership shall be considered the separate property of the recipient of the gift, unless the party making the gift specifies that the property is to be the joint property of the parties. Such specification shall be in writing and attached to this Domestic Partnership Agreement as an Attachment.
4. General Living Expenses
The day-to-day living expenses of the parties, such as normal expenses for food, clothing, and entertainment, shall be paid by the parties in such proportions as they from time to time may agree upon in light of the then available resources of each party.
5. Joint Checking Account
The parties shall establish a joint checking account from which either party may withdraw funds for the payment of household and other joint living expenses, including living expenses of the child(ren). The parties shall contribute funds to this checking account as they from time to time may agree in light of the available resources and income of each party.
The funds in this checking account, and property purchased using these funds, shall be the joint property of the parties. This checking account is for the convenience of the parties, and the amounts deposited in the account are not intended to reflect the actual cost of living of either or both of the parties.
6. The Parties’ Residence
____________________ and ______________________ are the owners of a house known as ____________________________________________ (primary residence). Said primary residence is encumbered by a mortgage and the principal balance presently outstanding is approximately $______________.
It is the intention of the parties to reside in said primary residence with their children.
The expenses of ownership of the primary residence, including without limitation utilities, homeowners insurance, real estate taxes, maintenance, and ordinary repairs, shall be paid by the parties in such proportions as they from time to time may agree upon in light of the then available resources of each party.
If, during the domestic partnership, the primary residence is sold and another residence is purchased in its place, the substitute residence shall be treated in the same manner under this Agreement as the primary residence for which it was substituted, unless the parties otherwise agree in a written instrument amending this Agreement.
The furniture, furnishings, and other household effects in the primary residence shall be the joint property of the parties, with the exception of items that were the pre-domestic partnership separate property of either party and art, antiques, or collectibles acquired as separate property of either party.
7. Other Real Estate
The parties from time to time may own real property other than the primary residence. If a party acquires such property in his/her sole name, it shall be said party’s separate property for purposes of this Agreement. If the parties acquire such property as tenants in common, the interests of each party shall be separate property interests in the proportions set forth in the deed. If the parties acquire such property as joint tenants with rights of survivorship, it shall be joint property. The rights of the parties with respect to such property shall be governed by this Agreement unless they agree to some other treatment of such property in a written instrument amending this Agreement.
Any pension plans of either party, heretofore or hereafter created, shall be and shall remain separate property of such party, free from any claim of the other party, notwithstanding the domestic partnership of the parties. Any pension plans that are the separate property of a party shall not be subject to equitable distribution and shall not be considered assets to which the other party would be entitled to share in, unless, in the event of death, the other party is designated on the pension plan documents as a beneficiary.
As used herein, “pension plan” shall mean any kind of pension plan, 401(k) plan, retirement plan, profit sharing plan, employee benefit plan, or any other form of deferred compensation to which a party may be entitled because of his/her employment or work. References to a party’s pension plan shall be deemed to include all monies held in such party’s pension plan or thereafter added to or accumulated in that pension plan, and any increments, accretions, or increases in the value of such pension plan, and any other rights such party has to the pension plan or such monies.
It is the intention of the parties to have or adopt one or more children during the domestic partnership. It is the intention of the parties that during their domestic partnership, when one partner has a child, that partner will consent to the other partner’s undertaking of any and all steps to adopt that child.
It is the intention of each party to create an irrevocable life insurance trust that will be funded by their separate funds, and that will provide for the maintenance of the surviving partner, if the domestic partnership is still in effect at the time the other partner dies. Regardless of the status of the domestic partnership, the irrevocable life insurance trust will provide for the maintenance, health, education, and welfare of the parties’ child(ren). The parties agree that each will continue to fund their own irrevocable life insurance trust until such time the life insurance policy has been paid in full or the youngest child reaches the age of twenty-five. The parties hereby agree that all indicia of life insurance shall be set forth in Schedule C, attached hereto.
10. Termination of the Domestic Partnership
The parties recognize that it is in their best interests to set forth their agreement as to their respective rights in the event of a termination of their domestic partnership by separation or dissolution of their domestic partnership.
The parties agree that the value of the primary residence and/or any other property that is owned jointly or by another entity whereby both are beneficiaries or own an equitable interest shall be determined by obtaining a current appraisal from the lending institution that possesses a mortgage on the property. If either party feels the lending institution’s appraisal is inaccurate, then a second appraisal will be obtained at the cost of the party seeking another appraisal. Both appraisals will be averaged and that average shall be the price the parties will use to determine the fair market value of the property.
The parties intend to agree upon which party will be able to remain in the primary residence, depending upon a variety of factors, the most important factor being the best interest of their child(ren). To exercise the option to purchase the primary residence one party (the Proposed Buyer) must give the other party (the Proposed Seller) written notice of her election to purchase the Proposed Seller’s interest within 90 days after termination of the domestic partnership.
Termination of the domestic partnership shall be considered as written notice defined herein. If the parties cannot agree upon which party will remain in the primary residence, the primary residence will be placed with a real estate broker at listing price of the fair market value as determined by the method set forth above.
If practicable, the closing of title shall take place on a date not more than 60 days after the fair market value of the primary residence is determined. At the closing of title, the Proposed Buyer shall pay the amount due to the Proposed Seller and the Proposed Seller shall deliver good and clear title, free from encumbrances, and any documents that may be necessary or appropriate to transfer all of his/her right, title, and interest in the primary residence to the Proposed Buyer.
If either party elects to purchase the interest of the other party in the primary residence, the party who so elects shall also simultaneously purchase the interest of the other party in the jointly owned furniture, furnishings, and other household effects of the residence for the fair market value of such interest.
If neither party exercises the aforesaid options, the primary residence shall be promptly listed for sale with a broker mutually agreeable to the parties. The parties shall jointly agree to the listing price. If the parties cannot agree, then the average of the appraisals discussed earlier in this section shall be used to determine the listing price.
If the primary residence does not sell at the listing price within a reasonable period of time, said price shall be reduced until the residence is sold. A reasonable period of time is agreed upon to be six to eight months. The parties agree that the reduction in price will begin at five percent of the listing price. The reduction will continue in increments of five percent until the primary residence is sold.
The net proceeds from the sale of the primary residence, after deducting for all related expenses in connection with the sale, shall be divided equally between the parties. Any liens and encumbrances levied against the primary residence as the result of a debt owed by either party shall be paid by that party with his/her own separate assets prior to the passing of title to the Proposed Buyer.
In the event of the termination of the domestic partnership, the parties shall have joint legal custody of any minor children of the parties. It is the expectation of the parties that the children will reside predominantly with their respective birth or legal parent[; however, the other party shall have frequent and meaningful contact/ parenting time with the child(ren)].
Each party agrees to pay reasonable amounts, in light of his/her available income and resources, for the support of any minor children of the parties, at a minimum, in an amount that is set forth in the current child support guidelines of the state in which the parties reside. The parties agree to consult and negotiate in good faith regarding the children’s education, visitation, payment of medical expenses, and other issues that may arise regarding the children in the event of the termination of the domestic partnership.
In the event of the termination of the domestic partnership any joint property acquired by the parties during the domestic partnership shall be divided equally between the parties, notwithstanding the percentage contribution each party may have made to acquire or create such property.
The parties recognize that some items of joint property, such as tangible personal property, cannot be readily divided into shares. If the parties cannot agree on the division of any such items or the fair compensation that one party should pay to the other for his/her share of such items, such items shall be sold so that the proceeds of sale may be divided equally.
Each party hereby irrevocably waives, releases, and relinquishes any and all claims or rights that he/she now or hereafter might otherwise have to or against the separate property now owned or hereafter acquired by the other party. This includes, without limitation, laws relating to equitable distribution, marital property, community property, curtesy, dower, or any other interest or right of distribution of property by reason of domestic partnership, cohabitation, union, or marriage. Each party recognizes that this waiver includes rights he/she might otherwise have or acquire in the future under the laws of the state in which the parties resided at the time the domestic partnership terminated.
As used herein, the term “termination of the domestic partnership” shall mean either party sending the other party written notice of intent to terminate the domestic partnership.
Notice shall be sent by first class mail, certified mail, or any other form of mailing by which confirmation of delivery can be ascertained. Notice shall be sent to the party’s current residence where that person normally receives mail or to the party’s last known address.
11. Death of the Parties
The parties recognize that it is in their best interests to set forth their Agreement as to their respective rights upon the death of either party during the domestic partnership.
All jointly owned property shall pass in accordance with the laws of the state in which the property is located. Title to property held jointly with rights of survivorship will pass to the survivor in accordance with state law.
Each party retains sole control over his/her separate property. Each party shall have the right to dispose of that separate property either by will or inter vivos or in accordance with the rules of intestate succession of the state in which the decedent was domiciled.
Nothing in this Agreement shall restrict the right of either party to bequeath or give property to the other party. If either party should provide that the other party shall receive property, as a bequest or gift under his/her last will and testament or otherwise, including without limitation life insurance proceeds, pension or profit sharing plan benefits, and assets held as joint tenants with rights of survivorship, such other party shall have the right to receive such property. The parties agree, however, that no promises of any kind have been made by either of them to the other with respect to any such bequest or gift.
The obligations set forth in this Article 11 shall terminate and cease to be binding in the event of the termination of the domestic partnership by separation or dissolution of their domestic partnership or annulment, except separate property shall always remain separate property.
If, upon the death of either party, an action for separation or dissolution of their domestic partnership or annulment has been commenced but a judgment has not been entered, any rights of the surviving party to share in the estate of the deceased party shall be extinguished and the surviving party shall be entitled to receive from the decedent’s estate only what the surviving party would have been entitled to pursuant to the Agreement had a judgment of separation or dissolution of their domestic partnership been entered.
12. Full Disclosure
A copy of the parties’ current net worth statement is attached hereto as Schedule B. The parties affirm that the contents of the net worth statement are accurate and true.
Each party has made independent inquiry, to his/her own satisfaction, into the complete financial circumstances of the other, and acknowledges that he/she is fully informed of the income, assets, and financial prospects of the other.
[Neither of the parties has been previously married. Neither of the parties has living children.]
13. Legal Representation
The parties acknowledge that they have retained and have been represented by separate and independent legal counsel of their own choosing in connection with the negotiation of this Agreement. _______________________ consulted with Attorney _____________________________. ____________________________ consulted with Attorney _________________________. Each has been separately and independently advised regarding this Agreement including the rights waived or otherwise released herein.
Any notice, demand, or other communication required or permitted under this Agreement shall be in writing and shall be delivered by hand or by courier or by certified or registered mail, return receipt requested, to a party at his/her address stipulated above or at such other address as the party may designate.
15. General Provisions
This Agreement is entire and complete and embodies all understandings and agreements between the parties. All prior understandings, agreements, conversations, communications, representations, correspondence, and other writings are merged into this instrument, which alone sets forth the understanding and agreement of the parties.
Each party acknowledges that all of the matters embodied in this Agreement, including all terms, covenants, conditions, waivers, releases, and other provisions contained herein, are fully understood by each; that this Agreement is fair, just, and reasonable; that each party is entering into this Agreement freely, voluntarily, and after due consideration of the consequences of doing so; and that this Agreement is valid and binding upon each party.
This Agreement and each provision thereof shall not be amended, modified, discharged, waived, or terminated except by a writing executed by the party sought to be bound. Failure of a party to insist upon strict performance of any provision of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature, nor shall it affect the parties’ rights to require strict performance of any other portion of this Agreement. Any waiver by either party of any provision of this Agreement or of any right or option hereunder shall not be deemed a continuing waiver and shall not prevent such party from thereafter insisting upon the strict performance or enforcement of such provision, right, or option.
The parties agree that each of them, upon request of the other party or the legal representatives of the other party, shall execute and deliver such other and further instruments as may be necessary or appropriate to effectuate the purposes and intent of this Agreement. Each party, upon request of the other, shall execute and deliver a confirmation that this Agreement remains in full force and effect.
This Agreement and all rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the State of ____________. The laws of the State in which the parties reside with their child(ren) shall govern irrespective of whether either or both of the parties heretofore or hereafter reside or are domiciled in any other jurisdiction and irrespective of whether any property is located in any other jurisdiction. If any provision of this Agreement should be held to be invalid or unenforceable under the laws of any State, county, or other jurisdiction in which enforcement is sought, the remainder of this Agreement shall continue in full force and effect.
This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors, and assigns.