Couples sometimes break apart. Even same-sex couples. When they do, there are items to consider that are common to all couples, plus items particular to same-sex couples that are the result of the denial of a legal status.
Because legal marriage is forbidden, same-sex couples do not have the benefit of a legal divorce procedure. While divorce has received a lot of bad press, it can provide context and guidelines for an orderly separation, division of household goods, as well as offering compensation for “sweat equity” when the other partner has been the major wage-earner.
Common-law marriage is only available in certain states in the United States and has never applied to same-sex couples. For more on this, lease see our article: Common-Law Marriage States.
Even when partners who have good hearts make an amicable separation, it is never without stress, and there are many emotional and financial considerations.
The following are points to consider should a couple break apart. For suggestions on how to continue as a couple, please see our article: How to Resolve Conflicts: Guidelines
Professional counseling is recommended, rather than relying solely on friends, because even the best of friends can only hear intense grieving once or twice. It can be very painful to listen to, especially if your friend knows the both of you. And you will need to talk about the same issues many times over.
Get counseling from a lesbian/gay-supportive health worker — “couples counseling” to help clarify the ending process — and individual counseling for personal healing.
In the case of an abrupt ending — especially if one of the partners considered the relationship to be committed and life-long — it can be considered an abandonment. This is traumatic and in need of a lot of attention.
Expect to grieve the relationship for at least eight years. This is normal.
And know that the pain and burden lessens with the passage of time.
Finding a Counselor
Specific counselor recommendations are out of our scope, however, there are many ways to locate a counselor.
One source would be the advertisements in your local gay/lesbian newspaper. Also, every major city has a gay/lesbian business association with many members who are counselors.
If you participate in a church or temple, contact the clergy. They usually have training in relationship counseling, or can provide recommendations.
Ask for an informational interview before committing to any counseling services.
When there are no legal custody documents — such as a dual-parent adoption, or an agreement to co-parent — the future care of children depend on the good will of both parents.
Non-biological parents — even if they did the majority of the child rearing — have frequently been prevented from visitation after a breakup. Most court rulings have often backed the rights of biological parents over those of a stay-at-home caretaker parent.
In custody cases, courts rely heavily on next-of-kin status. Because legal marriage is forbidden, same-sex couples are not able to establish a next-of-kin status.
As with opposite-sex breakups, in custody battles, the children are the biggest losers. They need as many loving parents as possible.
One of the benefits of a coupled financial system is the savings. In the event of a breakup, however, it is a very good idea to sever all such entanglements because separated parties do not operate or behave the same as a committed couple.
Because of the emotional nature of a breakup, it is possible that financial misbehaving could occur as a means of retaliation. A joint account could be overspent, ruining the credit rating of one or both parties.
Make sure all of the following are converted to the responsibility of a single party, or are dissolved:
Household Bills: Phone, Electric, Water, Gas, Rubbish
More expensive possessions such as a car, are more difficult to disentangle.
A co-owned house and property are the most complicated items to settle. Sometimes dissolving the dual ownership requires selling the property, especially if it cannot be bought by one of the owners.
If a house was owned by one partner, even though both contributed to the financing or upkeep, without a Relationship Agreement, the partner not on the deed could loose all that was invested.
Because legal marriage is forbidden, same-sex couples are considered to be legal strangers.
So the only way to prove there was an emotional and finical relationship — and have a better chance at a fair distribution of your jointly accumulated wealth — would be if you had made any of the following:
For information on some of these documents, please see our article: Legal Precautions to Protect Your Relationship.
Powers of Attorney
Domestic Partner Registration
Received Insurance as a Domestic Partner
Used as a “Dependent” for Tax Purposes
Ceremony of Commitment (documented)
Joint Credit Cards
Of all these documents, the Relationship Agreement would carry the most weight because it can contain a list of who owns what, and how you would proceed with a breakup, in the event of a falling out.
If you have none of these documents, and the breakup is not amicable, the only way to prove there was a relationship would be on the testimony of a third party. This may, or may not, be of use in negotiating or in court.
For further information on legal issues, please see our article: Advice to Lawyers for Worst Case Scenario Breakups
Don’t go there. Avoid going to court. For economic and emotional reasons, it is a path of last resort.
Because legal marriage is forbidden, same-sex couples are not allowed to use family courts in many states. This means a property division is handled in civil court, which requires lawyers. And the court may not need to consider such items as sweat equity, especially without documentation.
In today’s courts, lesbians and gay men are not always granted the respect we deserve. Therefore, alternative means of dispute resolution, such as mediation and arbitration, can be especially beneficial for same-sex couples. Additionally they can avoid the cost and delay of litigation.
Mediation requires both partners to discuss the dispute with a mediator, who helps them reach a mutually acceptable agreement. This agreement is usually written and generally can be enforced as a contract. If you are unable to reach agreement, the mediator cannot make the decision for you. Mediators are usually attorneys, counselors, social workers, or psychologists.
Arbitration is generally an informal process in which each partner presents her or his side of the dispute to an arbitrator, usually an attorney, who then makes the decision. The decision can often be recorded and enforced by the courts as a judgement.
It can be helpful to write a mediation or arbitration clause into a Relationship Agreement, specifying when an arbitrator or mediator would be needed, as well as how one would be selected. It is important to find someone both partners trust.
A few cities, such as Los Angeles and San Francisco, have mediation services specifically designed to serve gay and lesbian clients.
You can decide on either resolution method after a conflict has arisen in your relationship, but having an advance agreement is far preferable. In a serious dispute, you might be unable to agree on a forum, leaving no choice but the courts.