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JOSHUA LYNSEN
Friday, September 01, 2006
Two years ago, Julie and Hillary Goodridge celebrated on the steps of a Unitarian Universalist Church in Boston after getting married on the first day same-sex marriage was legal in Massachusetts.
The happy couple smiled and waved to cheering supporters, who threw colorful streamers as news photographers snapped away. Images of the jubilant brides were beamed around the world and accompanied front-page stories about the arrival of gay marriage in the United States.
But the party was short lived.
The couple, lead plaintiffs in the lawsuit that led to legalized same-sex marriage in Massachusetts, announced earlier this summer that they have separated.
“Julie and Hillary Goodridge are amicably living apart,” a spokesperson announced on behalf of the couple.
Last month, a similar fate befell the couple that was the first to enter into a civil union in Vermont. A judge legally dissolved the union of Carolyn Conrad and Kathleen Peterson on Aug. 23.
Following the public separations of some of the nation’s gay union pioneers, experts are warning couples to carefully consider the legal implications of their relationships.
Real estate, financial accounts and child custody rights can all be contested. Attorneys and financial planners said that amicable plans made early in a relationship can defuse a nasty breakup.
“Proper planning can mitigate many of the problems of the breakup,” said Joe Kapp, a gay financial planner with Lincoln Financial Advisors in Washington, D.C.
“The problem is, many people don’t do that planning when they get in a relationship.”
But couples living in states that still prohibit gay marriage or civil unions are more challenged to legally codify a breakup, especially when the finances are intertwined.
“I wish people could see all the situations I’ve seen,” said Michael McHugh, a gay family law and estate planning attorney based in Arlington, Va. “Because if they could, they would know just how screwed up the system is right now.”
McHugh said unmarried gay couples seeking comprehensive legal protection can spend thousands of dollars replicating the rights and protections automatically bestowed upon married straight couples.
He said couples that buy property, merge bank accounts or adopt children without a formal agreement are proceeding at their own risk.
“Failure to have an agreement is like a $30,000 to $50,000 mistake,” McHugh said. “Because if you’re reduced to litigation, it simply isn’t cheap.”
Mark Scurti, lead attorney at Scurti & Gulling in Baltimore, who is gay, agreed. He said that partner agreements, while costly, are the only way to be legally protected.
“You’re trying to simulate marriage as much as possible,” he said, “because you do not have the law to fall back upon.”
Land, money, children
Experts said partner agreements should carefully address three key issues: land, money and children.
“A domestic partner agreement is similar to a prenuptial agreement,” Kapp said. “It dictates who is going to get what.”
But the way couples address those issues varies widely by state. Scurti said Marylanders can draft partner agreements that clearly dictate how each issue is resolved.
Lynn Andretta, a Washington attorney who specializes in family law and mediation, said similar agreements are available to District residents.
“They’re binding contracts,” she said. “They can be sued upon and enforced if one party is not living up to the agreement.”
Virginia law, however, appears to preclude such agreements. The Marriage Affirmation Act, passed in 2004, stipulates, “a civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited.”
Given the restriction, McHugh said gay couples are best served by signing a “straight property agreement.”
“If the agreement goes into areas that are marriage, or marriage like,” he said, “there’s a greater possibility it’s not going to be upheld.”
Experts said gay couples should beware of “one size fits all” and “do it yourself” agreements. Such documents are often inadequate.
“Agreements have come across my desk that are two pages long,” McHugh said, “and didn’t anticipate situations that could occur.”
Kapp said couples that draft partner agreements in concert with a financial planner can ensure all financial and legal issues are dealt with simultaneously and holistically.
“There really needs to be some thought as to what is the overall goal the couple is trying to achieve,” he said, “and what assets should be held separately, and what assets should be held jointly.”
McHugh agreed. He said couples that set legal ground rules for their relationship often benefit from that effort.
“The most important role of agreements is getting a couple to talk about their expectations,” McHugh said. “It’s a relationship discussion.”
Laws changing quickly
Experts noted the separation of gay couples is an evolving legal practice, and knowledgeable guides are essential.
“It’s important to work with advisers who are staying current on the laws that affect these issues,” Kapp said. “The laws are changing very quickly. They are changing what seems like month to month.”
Organizations like Equality Maryland and Equality Virginia maintain lists of qualified, local attorneys.
Scurti, who’s on the Equality Maryland list, said the state’s lack of laws governing gay couple separations is problematic.
“Not all judges understand our relationships,” he said, “and you’re at the whim of the interpretation of a particular judge.”
“If you have a judge that’s less than sympathetic to our relationships, they’re going to bend over backwards to not allow the case to go forward, or do a strict reading of the law that may not be beneficial to any of the parties.”
But he said lawmakers — or judges — eventually will define a standard procedure.
“I think that the judges are becoming more educated about our relationships, because they’re seeing these issues crop up more than ever, and are being forced to deal with it,” Scurti said. “As that happens, we’re going to develop a body of law that helps us to understand how to deal with our breakups.”
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