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
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
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
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
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
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.