As the law begins to treat our LGBTQ families more equally, let’s try to do our break-ups differently.
Establish clear understandings as you marry. Prenuptial agreements will be enforceable if they are basically fair and entered into in good faith by both spouses.
Married or unmarried, it is essential to have certain documents: a will, power of attorney and an advanced medical directive. If you previously published a will, have it re-evaluated in light of the Supreme Court’s DOMA decision, which struck down Section 3. The tax treatment has changed completely if you are married.
Include a provision in any agreement that any divorce will be handled collaboratively or in mediation. Mediation is the process where a trained neutral professional assists a couple in resolving the issues arising from their divorce. Collaborative divorce practice employs a teamwork approach where both partners have the support of their own attorney who, together with other team members (such as mental health coaches, a neutral financial planner, a child specialist, etc.) help to resolve divorce-related issues without the cost, conflict and uncertainty of court litigation.
Divorces do not have to be hateful and adversarial. Choose lawyers, coaches, and financial planners who are certified in collaborative practice and members of collaborative organizations. Practice joint problem-solving. Seek options that will be a win-win for the family.
Relationships with our spouses/partners can be nurtured and preserved. There is a long, wonderful history of this tradition. Often, we have created our own families when our families of origin abandoned us when we come out. Do not lose your beloved friendship circles due to a breakup.
If we have formed a family with children, remember that it is not the divorce per se that hurts children; rather, it is the hostility and putting the child(ren) in the middle that leaves lasting scars.
Any parent in a LGBTQ couple should have the status of “legal parent.” Even if both parents are listed on the child’s birth certificate, do the second parent adoption. The consequences, if you do not, may be catastrophic. Even Virginia residents may have options to better protect their children. Parents who do not seek additional legal status are at enormous risk and their children do not have the same benefits.
In D.C., you can also consider domestic partnership. In the District, domestic partnership rights and responsibilities are comprehensive and equate with marriage under D.C. law. Some courts have held that same-sex couples have entered into common-law marriages by holding themselves out as married even though they did not obtain a marriage license. But note, domestic partnerships and civil unions are not considered marriages under federal law.
The rights of unmarried couples are somewhat amorphous and complex at the time of a breakup. The rules of marriage do not apply; your rights will largely depend on what you document in contracts. A clear contract and careful agreements are necessary when you purchase a home or condo.
It is encouraging to see our families increasingly integrated in our overall communities and treated better in the courts. As LGBTQ relationships inch ever closer toward equal status under the law, is has become more important than ever for couples to consider and plan for what is best for our families – in good times and in bad. Consideration, planning, and an honest dialogue now can ensure greater peace, stability, and predictability regardless of what may come.
Susan Silber has dedicated her legal career of more than 30 years to advancing the rights of all families, including a focus on same-sex families. Susan founded the law firm of Silber, Perlman, Sigman & Tilev, PA, which is a full service, community-based law firm located in Takoma Park, Maryland. She is an experienced attorney in family, employment, civil rights, and municipal law, and has served as the City Attorney for Takoma Park for 30 years.