When a Same Sex Couple Separates
When a gay or lesbian couple breaks up, many of the issues that arise are the same as for any couple. Who will keep the dining room set the couple picked out together during happier times? How will we share parenting of our son or daughter, when one of us is the biological parent and the other the adoptive parent, or has no formal status?
Long before gay marriage became legal in a few states in 2012, and brought lots of media attention to gay and lesbian relationships, a percentage of gay couples quietly made the choice to split up. Without any legal protection ensuring fair division of shared assets, without potential for spousal support when there is a great income disparity, many realized that they had entered a legal wilderness. The law does not provide the same protections and guidelines for property or custody issues, leaving some couples unanchored when they most need direction.
When children are involved, the Court's mantra, "What is in the best interests of the children?" is a valuable starting point. The simple fact is that if your child regards one of their parents as Mom or Dad, they will be hurt if that person is totally removed from their lives. They will feel abandoned, regardless of what the legal system allows to occur. While adoption laws have provided some reassurance that parents cannot be kept from their children, there are still numerous complications that can arise in these cases. This is where some solid advice - an hour or two - from a family law attorney who specializes in gay and lesbian issues can be a very worthwhile investment.
After you know your legal rights, or lack thereof, what next?
Ideally, you can sit down at the kitchen table, when there aren't any children around, and talk about how best to share parenting in the least disruptive way possible.
Whether there are children or not, you can make lists of what expenses each thinks should be shared, and discuss what would be a fair division of those. If you own a home together, your options are the same as any other couple.
Before you make an emotional decision about who should stay in the home, consider whether keeping it at all is wise financially. Home ownership contains many hidden costs, so a $1600 rent is not the same as a $1600 mortgage payment. With the mortgage payment comes maintenance and repairs, yard work, homeowners insurance, snow shoveling, etc.
If one of you is considering keeping the house, talk to mortgage brokers about what it would take ---whether you qualify---for you to refinance the mortgage by yourself. If the home is "under water," a licensed real estate agent can provide information (or Zillow) about the trend in home values in your neighborhood. Don't be swayed by your partner's firm belief that the value of your home will increase, or decrease. Fact is, no one knows for sure, even the experts are wrong sometimes.
Same-sex couples are often left feeling very alone when they separate, particularly if extended family members have never been supportive of the relationship (or aware). Finding community, even if it is just one friend who can listen, can be a light in the tunnel.
Ms. Zinner has worked with many gay and lesbian couples, and understands the issues involved. An empathic mediator can enable you to make the best of a difficult situation, and can write a Memorandum of Understanding based on the decisions you make together in mediation.