There once was a couple who during a beautiful ceremony in a friendly locale
swore to be together until death pulled them apart. After their marriage they
went back home and purchased a house and a couple of cars. They took trips and
bought furniture. This couple even had kids and spent more money than they ever
dreamed they could. And then one day, they decided they no longer wanted to be
together. So they divided all the property that they had accrued and determined
who was going to take what debt. They decided where the kids would live and
when and with whom. There was no animosity; the decision to split had been a
joint one and they were still friends. But what appeared to be a simple
solution was not so simple for this same-sex couple. Although they were married
in a state that recognizes same-sex marriages, and were in fact “legally
married,” their home state considered them to be nothing more than
roommates.

Simply put, it is problematic for same-sex couples living in states that do not
recognize same-sex marriages. All those “benefits,” like the ability
to divorce, that are given to heterosexual married couples do not exist. So
what are the options for couples who find themselves in this situation?

To begin with, same-sex couples who are married in a state that recognizes
same-sex marriages but live in another state should be proactive and enter into
a Domestic Partnership Agreement. While this type of agreement is also useful
for heterosexual couples who are not married, the Domestic Partnership
Agreement also acts as a Prenuptial Agreement for those who are not recognized
as being married. With this document the couple can outline what will happen in
the unfortunate event that they wish to sever ties.

The couple described above did not have the foresight to enter into such an
agreement. Luckily for them they werein complete agreement regarding issues
such as property division, child custody, support, and retirement benefits.
This couple is able to take the private mediation route and enter into a
Conciliation Agreement. This contract contains all the terms that are agreed
upon by the couple when dissolving the relationship.

Unfortunately for couples who did not enter into a Domestic Partnership
Agreement and are not in any way amenable to a division, the road to
“divorce” or separation as the case may be, will be a little muddier.
Who will determine who keeps the house, the car, or the kids? No court order
will determine what portion of your retirement fund your partner is entitled
to. No judge will tell you that you have to pay spousal support or child
support or Capital One for that trip to Maui. You both want the house – a
partition action will need to be filed (in a regular civil court, as opposed to
a domestic relations court) if you both hold title to the home. If only one of
you has the title, the other may end up with nothing. You both want the cars
and the furniture – yet another civil suit. You both want the kids (but only
one of you can be considered the legal parent) – you will find yourself in
Juvenile Court. No one wants the debt – but if your name is on it, it’s yours.
And of course everyone wants spousal support, but too bad, you were never
married. Same thing goes for that portion of the retirement account you thought
you were entitled to. How can it be determined what portion goes to you when
you were never considered to be married? What if you were living together as a
married couple for 15 years before any state even said you could get married. See
the problem?

With a same-sex couple, there are always going to be roadblocks when it comes
to divorce beginning with considering where and how to start the process and
ending with how to tie up the loose ends that occur at the end of any type of
long-term relationship. This is why it is important for same-sex couples to be
proactive and talk to an experienced family law attorney about drafting a
Domestic Partnership Agreement, or if failing to enter into one, how to
navigate through the complex legal proceedings necessary to obtain an equitable
result.