Breaking Up When Theres No Legal Relationship

chapter 10  | Going Separate Ways |  371
Breaking Up When There’s No Legal Relationship
If you and your partner have never married, registered as domestic
partners, or entered into a civil union, then 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 only 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. There’s more on that below.)
For some people, there’s a downside to not having to involve a court in
your breakup—the usual marital rules about sharing money and property
don’t apply, and that can cause a hardship in some circumstances. 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, the
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. Chapters 3, 4, 8, and 9 all address these issues
in detail.
372  |  A Legal guide for Lesbian and Gay Couples
See an expert
You’ll probably need legal help with a claim for an implied or
oral contract. Oral or implied agreements may be enforceable in your state,
but proving them is not easy. Having the right to launch a claim doesn’t mean
that you will win. Before you stake out your claim, get a realistic evaluation
of its strength from a legal expert. It may not be easy to find an experienced
local attorney who knows how to handle your case. Many family law attorneys
only know marital rules, not nonmarital rules, and they may be uncomfortable
working on a gay breakup. Most real estate attorneys are used to dealing with
business partnership breakups, so they probably aren’t accustomed to dealing
with intense emotional conflicts. Chapter 11 has information about finding and
working with an attorney.
On the other side of things, joint accounts and assets held in both
names are generally presumed to be owned 50‑50. 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 split up and you’re able to agree how to divide your property,
you can just do it and move on. If you can’t, however, in most states your
legal disputes about property will be handled by the general civil courts,
not a special family court as in divorce cases. You are likely to be assigned
to a regular judge and required to follow regular litigation procedures, as
though you were dissolving a business partnership. The major exception
to this is if you have children. In that case 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 issues are more
complex. There’s more on this below and in Chapter 5.
Caution
Try to be fair. Remember that the person you are now fighting is
someone you once loved. If you treated your relationship like a marriage, give
some consideration to what the law would require if you were married, be honest
about the agreements you had (and didn’t have) with each other, and make every