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When things end relatively amicably, many couples seek mediation, where they draw up a binding legal document with the help of a professional. Ideally, though, attorneys who specialize in dividing same-sex (or unmarried opposite-sex) unions say they should have started drawing up documents that codify the relationship — including how it will end — as soon as they got butterflies in their stomachs for each other.
"It's a very unfortunate thing that you plan for the demise of a relationship," says Todd Sivia.
Sivia is a business and real estate attorney turned same-sex law specialist in Edwardsville, Illinois. (His firm, Sivia Business & Legal Services, snapped up the domain www.samsexlegal .com last year.) He got into the business of teasing apart complex relationships in 2007 when a woman facing a split from her partner of 21 years came to him after family-law attorneys turned her down.
"Yes, there's a lot of emotion to it, but you have to look at it as a legal partnership between two individuals under the law, with an equitable part of the interest," he says.
Essentially, says Sivia, couples who don't have the benefit of federally recognized marriage must do more homework to ensure things are fair between them. It's certainly less romantic and less easy.
"In a marriage, you say, 'Let's figure out the value of all these assets and divide by two.'" When it's not a marriage — as out-of-state same-sex marriages are considered in most states — "you have to go back through every receipt and say, 'Who bought the Crock-Pot?'"
Trying to blend property in the first place is fraught with peril, too.
"Say John puts Matt on the deed to a piece of property," Sivia says. "He just gifted half the house to him — say the house is worth $150,000. He just gave him a $75,000 gift. They're required to pay a gift tax." That's a substantial chunk of change — a penalty that a woman putting her husband on the deed to her house need not concern herself with.
Sivia, like others in the emerging field of same-sex law, contributes to and draws from information at the National Institute for Domestic Partner Estate Planning, a project of Raleigh, North Carolina's Jeffrey Marsocci. Marsocci's book, Estate Planning for Domestic Partners, spells out strategies for unmarried couples of all stripes.
Whether gay or straight, married or unmarried, couples often have incorrect ideas about what they're entitled to and how best to protect themselves, Marsocci says. He believes they're well served by treating their partnership like a business relationship. One solution is to put assets into a joint revocable trust.
"We can separate on paper who exactly is the real end-of-the-day owner of those assets," he says. "If the IRS looked, they'd see they're both controlling things."
That's useful at the beginning of relationships and also in the event that they end.
"The domestic-partnership property agreement we usually use in conjunction with the trust acts like a prenup," he says. While bringing the assets together, "we're spelling out who really owns what, be it one, the other, 50-50. This is a contract. That kind of provides a framework for dissolving the relationship."
Michael Tramble, a St. Louis mediator who specializes in same-sex dissolution, says mediation is a sane and respectful, not to mention less expensive, way. (While he has a law degree, Tramble isn't an attorney, but the agreements he helps couples draw up are binding.)
"There are some everyday basic things — who gets to stay in the house? Parenting plans — how's it going to work out? Who has physical custody? Any financial arrangements, maintenance and child support — these basic things would happen in any relationship. An attorney is going to deal with it in a very legalistic way. They'll try to get the most money in a way that doesn't respect the relationship."
Susan Block is a former family-court judge in St. Louis County Circuit Court who currently practices family law. She says that, unfortunately, same-sex couples need to realize that, married or not, once they're in Missouri, they do not have the legal rights that come with marriage.
"It's sort of irrelevant that they got married in another state," Block says. "The marriage may be meaningful to them, that they made the commitment. When they come back to Missouri, what they are is a couple who lives together."
When she gets calls from couples splitting up, Block advises them to try mediation first.
"If they can't, though, sometimes it gets a little ugly. They can file a suit in partition and ask the court to order the property to be sold and divided, so that takes care of the property," she says. "But there really is no vehicle to dissolve their relationship. As far as a lot of the rights that married couples get, an equitable distribution of marital property and debt or attorneys' fees and allocations, there is not much of a remedy."
Block knows how unfair all that is. When asked what out-of-state same-sex married couples should do if they want a divorce, she laughs ruefully. "Drown themselves in the Mississippi!"
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