It is possible to use a "common law" LLC as a do it yourself domesticpartners program.
In the U.S., each state and the District of Columbia has created LLC law. People are entitled to create LLC operating agreements and formation papers and file those papers with the state. This is the formal LLC formation procedure setforth by the states.
In order to determine if a Relationship LLC is right for you and your partner(s), you can follow all of your state's requirement for creating a LLC except for the final step of filing the formation papers with the state. Relationship, L.L.C. will recognize your relationship as a LLC. This is Relationship LLC's Domestic Partners Program (tm). Your relationship may purchase a vanity email address to the Domestic Partners.Net domain name and join Relationship LLC's Synetergy Network (tm), an affiliate program for people who do not want to manage their own Synetergistic web sites. Of course, you may elect to create and manage your own free commercial web site making use of Synetergy (tm), most affiliate networks do not require that you be a registered business nor have a business tax id.
It is our hope that, after experiencing what it is like to be in and manage a Relationship LLC, you will file your formation papers with your state within one year of the date you create your formation papers. This program is a product of our religious beliefs and is intended to promote social order by (a) supporting conventional marriage as a non-discriminatory contract between one man and one woman; and (b) by providing persons who choose not to (or who are unable to) marry with a method of obtaining the same rights and benefits as married couples.
While there is debate among attorneys as to whether an LLC can really exist under common law, there was at least one argument holding that a LLC could possibly exist among the parties if the formation papers are not filed with the state:
The LLC may exist among the members and perhaps by estoppel vis a vis third parties despite the absence of a filing, depending on the statute. See Ribstein & Keatinge on LLCs,section 4.15 There is a table of statutory provisions relating to this issue in appendix 4-1.
For comparisons between LLC and limited partnerships and corporations see Ribstein and Keatinge sections 4.17 and 4.18. I too have been puzzled by the difference regarding RULPA section 304 on erroneous partners. But the difference may not be that great in practice -- e.g., the assume to act provisions some LLC statutes, as in corporate statutes, may not reach inactive members, and the erroneous partner provision in RULPA is only a limited shield.
For limited partnership cases that may be applied to LLCs, see III Bromberg & Ribstein on Partnership section 12.04(b). These cases are of considerable assistance on the issue of whether the agreement is binding among the partners as distinguished from vis a vis third parties.
For a theoretical discussion of the above issues that antedated LLCs, see Ribstein, Limited Liability and Theories of the Corporation, 50 Md L Rev 80(1991)."
A treatise discussion on personal liability for Defective Formation. Bishop and Kleinberger, Limited Liability Companies (Warren, Gorham and Lamont), para. 6.02[2]. I'm told the treatise is now available through Westlaw.
I think the proper analogy is to defective corporate formation. I don't think that limited partnership cases will be much help. Until very recently, the notion of a limited partnership inevitably involved someone contemplated as a general partner. That person was destined to be personally liable for the enterprise's debts in any event. No analogy exists with an LLC. Moreover, the Revised Uniform Limited Partnership Act contains a byzantine provision protecting would-be limited partners in the event of defective formation. RULPA sec. 304 (person erroneously believing himself [or herself] limited partner). Again, no analog exists under LLC statutes.
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