"With divorce, we have multiple statutes and volumes of case law telling how the property, all the issues in the dissolution of a marriage, should be dealt with," Madden says. "There's not nearly as much guidance when it comes to dividing up joint property in a same-sex union."
Often when a same-sex couple seeks to disentangle their ownership in jointly held property, they'll file a partition suit, and a judge finds a way to give each party their fair share. In some cases, a partition suit can end up with shared real estate being sold in a forced sale and the proceeds split, Madden says.
But that only gets at the nuts and bolts of dividing up jointly titled property.
"That doesn't touch the fairness of the partner who has all the employee benefits, the 401(k) — they're all in that individual's name. In a dissolution action, those are forced to be divided. You have this definition of marital property, but that concept doesn't exist in a same-sex partnership."
One 57-year-old woman from Edwardsville, Illinois, can only talk about her experience if her full name isn't used. But W's split from her partner of 21 years and the acrimony and sadness of trying to divide the house they owned together for 14 years illustrates what same-sex couples are up against.
"My house was great," W says. "It wasn't real expensive, but it was great."
And now it's gone. She has been trying to rebuild her life since her partnership ended in 2008, staying with family and friends and trying to make sense of it all.
"But, man, I'm living like I got out of high school," she says. "Everything I built up, it's gone. It's pretty nasty. If it's not on paper, you're not gonna get it."
W met her partner when she was in her thirties and getting out of a relationship she'd been in since she was seventeen years old. While she was fairly well established at the time, she certainly wasn't rich. She was secure in her job and paycheck, though.
"When we first got together, I had the better job. She was laid off a lot — she was in construction. It was one of those things, you don't mind paying for everything. She got enough seniority where she started working more. Usually in the winter she was laid off, but she made beaucoup money when she worked. My job changed — I was a dental technician. I made a lot less. She made the house payments, I paid all the utilities."
Like so many unmarried couples, the pair just figured out a fair way to shoulder the financial burden of the house. But "there was nothing, there was no legal bond," W says. They were beneficiaries on each others' life insurance policies, and both their names were on the deed to the house, but that was it.
Then, unexpectedly, things went very wrong in the relationship. W says her partner became abusive. She filed for an order of protection, and her partner had to leave the house for a time. But before that happened, the partner became destructive of the house and their mutual property. A police officer told W that, because the partner owned half the house, she had no legal redress. He told W the case had to go through civil courts before she could do anything.
"She got everything in the house. She moved it out before the order of protection," says W. "There was no way I could get that stuff back. She took all the warranties, all the bills of sale on the furniture, the furnace, everything. If her name was on it, she took it. We had a safe-deposit box. She closed it. My passport, will, insurance policy, car and bike titles. I had to go and try to get all this info afterward."
Had the pair had the benefit of marriage, possession of the warranties and bills of sale wouldn't have held nearly the same weight. It would have all been considered marital property, subject to equitable distribution in the hands of a judge in family court with experience in dividing up households.
But, of course, they didn't.
W tried to seek representation from three different family-law attorneys, all of whom turned her down. She finally found Todd Sivia, who took the case.
The pair went to court to divide their assets, not as marital property, but simply as jointly held assets, with no chance for equitable property division to be considered. Instead, it was a matter of who had what titles and receipts and how to divide jointly held assets, such as the house, down the middle.
"When the judge got it he said, 'I'm really sorry, I've got a big load.'" W. says. She felt the case was rushed and not given the attention that it merited: " Nobody ever heard my story."
In hindsight, W says it seems clear that legal marriage, or some sort of prenuptial agreement, would have saved her a lot of hassle and heartbreak. "It would have been wise to do it for the legal protections," she says.
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