Domestic Partners and Divorce

When same sex relationships end, the partners may experience emotional and legal angst, just as those in heterosexual marriages.            

Three experts who research the issues surrounding domestic partnerships among gay and lesbian couples have all found that they may face high levels of grief and frustration at the dissolution of their relationships. The difficulties can generally be separated into two parts:  legal and emotional. 

The legal frustrations stem from the lack of support in the body of marital law for same sex domestic partnerships. The emotional turmoil can stem from the levels of personal attachments developed in these partnerships.  


LITTLE SUPPORT FOR DOMESTIC PARTNERS              

The law tends to recognize those in same sex relationships as two people unrelated to each other, said Barbara J. Cox, a law professor at California Western School of Law in San Diego, Calif. 

Cox’s expertise is in researching how existing law fits same sex marriages and civil unions. As the law sees it, same sex couples are no different from unmarried couples, unless they live in a state that recognizes domestic partnerships, marriages or civil unions. “So often, the problem is, it’s only been for the people in state-recognized relationship that the court gets involved unless one partner sues the other,” Cox said. 

So for the people who are in relationships in the 45 states that don’t recognize the partnerships, Cox said, they are trying to end their relationships themselves with no legal guidance. 

It is not like legally married couples who have a body of law available to guide them in extricating themselves from relationships, she said. “You have none of the systems set up that help people get out of an unhappy relationship,”  Cox said.

So if one person in the relationship tries to walk away with all of the assets developed during the course of the relationship, the only legal recourse is a civil suit, she said. If the couple has not entered into some sort of contract about how the relationship will function, and how it will end, they may be at a loss for legal protection. “Then the person who has the money walks away with the money,” Cox said. 

“There is no law that is imposing any requirement there.So it can be really challenging and complicated.” Partners may be able to piecemeal some of the legal rights granted to the legally married by forming private contracts that define their responsibilities within the relationship. For example, a power of attorney can help partners have the right to make medical decisions about each other. 

Some couples sign a form of cohabitation agreement, which defines how the assets will be divided at the demise of the relationship, much like a prenuptial agreement. 

Cox said states believe in the freedom of contract, so using it can help same sex couples receive some of the rights and responsibilities automatically granted to those who can legally marry, however, the process can be expensive. Beyond the expense, putting together such contracts can be an emotional minefield, Cox said. 

Many of the problems that married couples have in signing prenuptial agreements arise in these kinds of personal contracts, she said. It might be difficult to discuss with a partner how the relationship will end at the moment it is being cemented, she said. 

However, it is smarter to discuss how to divide assets, split purchases, divide retirements before there is any acrimony, she said. “For most same sex couples, you really would be wise to do it because the law is not going to import anything to help them,” Cox said. "Those are things you should do when you get into a relationship anyway. It’s just most of us don’t do it.”