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War of the

War of the


The best time to discuss the end of your relationship is at the beginning.

When Neil Sedaka recorded the song "Breaking Up Is Hard to Do," he probably wasn't talking about gay and lesbian couples. There's a myth that married heterosexuals have a more difficult time breaking up than gay couples due to legal issues, especially when children are involved.

However, it's precisely because we lack the clarity of legal marriage that same-sex couples have to self-determine an equitable separation of their assets or, worse yet, battle over who keeps the DVD collection, the house, or even the dog.

Which is why it's vital for gay couples at the outset to discuss potential issues that may arise if their relationship ends. It may seem distasteful to plan for a breakup while still in the pink glow of new love, but that's actually when you'll make the fairest decisions for both parties, and help maintain a stable relationship long after the honeymoon has ended.

Below are five points that can help gay and lesbian couples when they're breaking up. Sit down with your partner and discuss these issues now.

Separate but equal. Combining all assets may seem like a great idea, but the law might not protect you. It is often better for gay and lesbian couples to have separate accounts but maintain a joint account for household expenses. Keeping monies separate has the added benefit of decreasing potential financial conflicts. Maintain separate credit cards for the same reasons.

Getting real about real estate. Buying property together is one of the largest joint purchases a couple can make. Often, one partner contributes disproportionately to the down payment or pays more of the mortgage, which can create different expectations about who should receive what when a couple splits. Before looking at real estate together, set clear guidelines about how the property would be divided and valued if one of you wanted to keep the property after you split.

Consider domestic partnerships or civil unions. Domestic partnerships and civil unions can mimic marriage and divorce laws -- so, if you split up, there's a greater precedent for how assets would be divided. Use caution -- same-sex unions often come with additional legal and financial responsibilities.

No kidding around over the kids. If children are part of your picture, it's in everyone's best interest to spell out which parent would have primary custody and how expenses like health care and education would be covered. This will ensure a good family relationship in the future.

Get it in writing. Put everything that you have agreed to in writing. Work with an attorney to draft a domestic partnership agreement, which would dictate who would be entitled to what assets and at what percentages. A co-parenting agreement may also be appropriate. Be careful, though; some states may not honor domestic partnership agreements or parenting co-agreements as valid, so speak with an attorney first.

Ask Joe and Nick

Q:I'm curious as to how the IRS looks at joint cash accounts among same-sex partners. I have several with my partner, but the cash is mine, as it came from the sale of property listed solely under my name. Should I be concerned that the IRS will see the creation of a joint account under my tax ID as a gift to my partner in the amount of half the account balance? Will she be asked to pay income tax on that amount? Or do I need to worry only if my partner ever used any of the money to purchase something in her name alone (exceeding more than $12K per year)?

A: Placing the cash in a joint account does not in and of itself expressly create a gift. If your partner pulls the cash from the account, then a gift takes place. As you understand, the IRS grants a $12,000 exemption -- above that, gift taxes up to 45% might be owed. Additionally, the IRS, for the purposes of federal estate taxes, assumes that assets titled as joint tenants with rights of survivorship fall in the gross estate of the first person to die, unless contributions can be proven. So if your partner passed away with substantial assets and you could not prove that it was your money, the IRS could claim that it was part of your partner's estate and tax you on it.

If the goal of your joint account is to ensure that when you die the money passes directly to your partner, you're much better off with an account that has a payable-on-death or transfer-on-death designation. That way the money will flow automatically to your partner and you'll avoid any issues with gifting, since the account is not jointly titled. And if you split up, your partner would not be able to deplete the account.

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