Breaking Up An Overview

336  |  A Legal guide for Lesbian and Gay Couples
W
hat if the romance begins to fade or the relationship
begins to disintegrate? It happens all too often, to gay and
straight couples alike. This chapter addresses the end of
relationships—both straight marriages where one partner comes out as
lesbian or gay, and same-sex relationships—whether or not they involve
marriage or a marriage-like relationship.
The anger and sense of loss that so often accompany a separation
cannot be overcome by any legal counsel. Emotional crises are best
addressed through the help of friends, family, and maybe a good
therapist. And even though the breakup may, in time, emerge as the best
thing that ever happened to you, along the way you will surely have to
wade through a morass of emotional and practical obstacles.
On the legal front, a dissolution (the common legal term for the end of
a marriage, which we use for married and unmarried relationships) does
not have to be a complete disaster. If you and your ex can work together
rationally to divide up your property and sort through your financial
affairs, it’s possible to avoid the costs and heartache of an ugly breakup.
This chapter deals with three different breakup scenarios: those where
same-sex partners aren’t in any kind of formal legal relationship such
as marriage, domestic partnership, or civil union; those where same-sex
partners are legally married or registered in one of the states that allows
for such legal relationships; and those in which a lesbian or gay individual
is coming out and leaving a heterosexual marriage.
Many issues are the same for all three scenarios, so the bulk of the
chapter discusses matters that are common to all three. Later, there
are sections that deal with the specific issues, concerns, and legal rules
involved in each different scenario.
Breaking Up: An Overview
American legal rules on divorce are an odd amalgam of anthropology,
social history, economics, and law, and are continually evolving. In one
sense, marriage is a “contract” between two consenting adults—except
that unlike most other contracts, neither party ever reads or approves of
the contract provisions. These provisions are established by the state, and
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Divorce Then and Now
The first edition of this book had a chapter titled “Marriage, Children, and
Divorce.” It began like this: “Many lesbians and gay men have been involved
in a heterosexual marriage and become parents.” The assumption was that
the only way an LGBT person would need a divorce was if they had been in a
straight marriage—and that it was also the most likely way that they would
have come to be parents.
These days, innumerable lesbians and gay men have children without ever
having been involved in a heterosexual marriage. And these days, in 16 states
and in Canada, same-sex partners can marry or enter a marriage-equivalent
relationship. Although these are the only places where a same-sex couple
can legally partner, they are not the only places that a same-sex couple can
divorce. For example, even though California and New Jersey explicitly prohibit
same-sex marriage, they’re just fine with same-sex divorce. In fact, most
couples who enter into domestic partnerships or civil unions in these states
are legally required to end their relationships using the same legal system that
denies them the right to marry.
On the other hand, much of the content of this chapter is unchanged from
1980. We still encourage you to avoid a custody fight whenever possible—
whether with your spouse from a straight marriage, or with the same-sex
partner with whom you share parenting responsibilities. And we still believe that
a good divorce can be as precious as a good marriage.
once the couple says “I do” all the laws of marriage apply automatically.
So do the laws of divorce.
The most important differences between being married and unmarried
when you’re breaking up are that unmarried couples are not required to
take court action to end their relationships, and marital property rules
generally don’t apply. If you go to court because you can’t work out a
custody arrangement for your children, you’ll find that issues involving
children will be heard in family court exactly as they are with married
folks. But in most instances, property and financial disputes will be