If you and your partner have never married, registered as domestic partners, or entered into a civil union, you can end your relationship without having any contact with a court -- assuming you’re able to agree on how to divide your assets. The exception to this rule is if you have children, in which case you may want to have the court enter an order relating to custody and visitation of your kids, even if you’re in agreement about how to share time. This article discusses the range of legal issues you should consider if you’re splitting up.
If you’re able to agree on how to divide your property, you can just do it and move on. If you can’t, however, you’ll need help resolving your disputes. Before taking on the burdens of a court battle, consider whether you can reach an agreement through negotiation or lawyer-supervised mediation. These roads are often the safer, saner ways to travel through a breakup where property ownership is contested.
Before you proceed, you should determine the issues you really need help settling, and approach the negotiation or mediation process with an understanding that compromise is going to be necessary. Make sure you get your final agreement in writing, and do whatever you can to avoid having to submit your lives to a court’s opinion. For more information, see "Same-Sex Divorce: Why Mediation or Collaboration Is Better Than Going to Court." (It’s written for married same-sex couples who are divorcing, but much of the information about negotiation and mediation applies in your situation, too.)
If you can’t settle things on your own -- or with the help of formal negotiation or mediation -- your legal disputes about property will probably be handled by the general civil courts, not a special family court as in divorce cases. (Again, the exception is if you have kids.) You are likely to be assigned to a regular judge, rather than one specializing in family court matters, and you'll be required to follow regular litigation procedures, as though you were dissolving a business partnership. The usual marital rules about sharing money and property will not apply.
For example, unless one partner can prove a clear agreement that the other promised to provide postseparation support, neither partner is entitled to alimony -- even if one partner gave up a lucrative career to run the household for the other partner. If you do have a written agreement, a court will probably enforce it. But if you don’t, it will be very difficult to prove you had an oral agreement. The fact that one of you supported the other one during your relationship or that you signed wills to provide for each other upon death is almost always irrelevant.
Likewise, if there is no written agreement or clear history of actions showing that your intention was to merge your assets and debts (such as opening joint accounts or putting both names on the deed to your home), each partner will likely be found to solely own the assets and debts that partner has accumulated. Your salary, credit card accounts, and savings account are yours alone. In most states this presumption of sole ownership can be overcome only by a written agreement. In others, a court may find and enforce an oral or implied agreement to share assets. But proving that such an agreement existed can be very difficult if you don’t have written proof. Before you pursue a legal claim, it’s wise to get a realistic evaluation of its strength from a family law attorney who understands the rules that apply to both nonmarital separations and same-sex partnerships.
On the other side of things, joint accounts and assets held in both names are generally presumed to be owned in equal shares. The presumption can also be overcome by a written document, signed by both of you, saying that your shares are not equal, but in some states it also can be overcome if one party can prove that an oral or implied agreement supersedes the written document.
If you and your partner have children, the issues of custody, visitation, and child support should be handled just as they are for straight couples -- though if only one of you is the legal parent, the situation may be more challenging.
In same-sex families where the parents are not married or legally partnered, there’s frequently one parent whose relationship with the children is legally at risk. If you’re the second parent and you haven’t taken whatever legal steps your state allows to protect your relationship with your kids, you may find yourself in the painful situation of having little or no contact with children who are in every sense yours -- except legally. At the very minimum, you and your soon to be ex-partner should sign a coparenting agreement that declares in no uncertain terms that you are both parents and that sets out your agreements about how you will share the responsibilities of raising your children after you separate. This is a situation in which it's wise to consult a qualified family law attorney who is familiar with the legal issues faced by same-sex couples who are splitting up.
This article was adapted from A Legal Guide for Lesbian & Gay Couples, by Frederick Hertz and Emily Doskow.