Op-ed: A Model for Divorce, Even When Marriage Isn’t Legal

Those of us active in the legal world of family law are constantly reminded that “the law” significantly lags behind the realities of modern human society.  When our college age son came out as a proud gay man to his family, I became keenly interested in exploring ways the same-sex couple can strengthen their union by preparing for the worst — a dissolved union.

One of the many unjust results of a legal system that refuses to recognize and validate a same-sex marriage or civil union is the absence of any way to dissolve a fractured same-sex couple. The LBGT couple typically has many, if not all, of the same legal issues to confront.  How is custody of their children shared?  How is their shared property divided?  Who must help to support whom?

Canada reminded us all of the uncharted legal mess that a couple can expect to find when a government lawyer told a lesbian couple they didn’t have the right to divorce. The couple didn’t live in Canada but were married there, and so the lawyer claimed (before higher-ups took it back) that their marriage wasn’t legal — leaving them suddenly in a relationship with no built-in rulebook for splitting apart.

Because my state, like so many others, obdurately refuses to validate and regulate same-sex marriage or civil union and their occasional terminations, I recommend the LBGT couple reach as many binding agreements as possible, no matter how unromantic, when they embark on their lives together. 

Property ownership and financial obligations can be made binding by a cohabitation contract, much like the premarital and post-marital agreements so many heterosexual couples employ these days.  Parents may be given equal rights and duties to their children via adoption or parenting conservatorship agreements. And estate planning can be done ahead of time. Progressive attorneys throughout the country are assisting the LBGT community to “work around” the backward state of the law in their communities, while engaging in the fight to systemically address the inequity. 

But what tools does the legal community have to assist the same-sex couple when their relationship ruptures, and it becomes time to negotiate?

The emergence world wide of the concept of collaborative family law offers an effective, if not ideal, process that LGBT couples should be aware of. It can legally and contractually codify an intact family, lessening the uncertainty of a possible split and creating legal equality in the relationship.  And if the couple separates, particularly in a state that refuses to recognize the same-sex marriage or civil union, the collaborative law model is invaluable in offering structure and guidance to the divorcing couple.

The collaborative law model emerged in the early ‘90s as an alternative to the court process of divorce.  The movement has since gone viral around the globe.  At the core of the process is the contractual agreement signed at the start of the dissolution that says the couple will not appear in court to seek court intervention.  And, if one or the other wishes to do so, both parties must hire new lawyers, from different law firms, before taking their case to court.  The beauty of this tenant is that all participants, legal counsel included, have a financial incentive to reach an acceptable resolution.

From the straightforward to the complex family law issue, the steps of a collaborative process are simple and highly successful in reaching agreements.  First, the couple identifies their true goals and interests.  Second, all the relevant information needed to make a decision is gathered and shared.  Third, options for settlement are generated.  It’s important not to prejudge options because it limits the group’s creativity.  Finally, options are evaluated until an agreement is reached.  The attorneys guide the couple through all the steps without imposing any judgment on the options on the table.  Unlike in litigation, the words, “I’m not going to let my client agree to that” are eliminated from the discussion.

Interest-based negotiation is a fundamental principal of the collaborative model.  Traditional litigation and settlement are based on positional bargaining.  In a collaborative process, we help the couple focus early on their true interests. For example, a litigating couple may argue about which person keeps their home. One person wins and the other loses.  But maybe the real reason for wanting the home is the emotional need for the security of the nest and the fear of transition. A host of options could address such an interest, perhaps a transition time, financial help in buying another home, or trading investments for the home.

As the collaborative movement has grown worldwide, different approaches have developed.  In my collaborative community, we add two members to the team — a mental health professional and a financial professional. Both professionals are neutral and participate to help the couple and their lawyers collaborate at their highest level of reason and effectiveness. The mental health professional helps all navigate the waters of loss, grief and anger — emotions that usually permeate financial and parental decisions.  The neutral financial professional participates in helping to gather and interpret financial information and fashion creative solutions.     

Same-sex couples are perhaps better suited to the collaborative law model than their heterosexual friends.  Same-sex couples tend to share power better, be better at fair fighting and be more upbeat in the face of conflict and adversity. 

I have heard the joke that reasons, of course the same-sex couple should be allowed to marry — why should heterosexuals be the only people inflicted with divorce lawyers?

My serious answer to that question is the same-sex couple has a chance to model for heterosexuals, the most positive, productive and practical way of planning for a relationship.

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