Legal Alerts-October 1999
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Some Thoughts on What is "Fair"

At least once a month a client tells me he or she wants to do "what is fair" in the break-up of his or her relationship, and they often ask me what is fair in their particular situation.

There are no easy answers, for several reasons. The reality for lesbian and gay couples is often inherently unfair, for reasons which lie outside of the control of the couples themselves. We are not allowed to marry, so we cannot take advantage of tax, employment, and social benefits. On a more fundamental level, many of us are denied such social and economic benefits as family support, economic security or community acceptance.

Fairness is a terribly elastic concept, which can mean different things to different people. Breaking up triggers a differentiation of feelings between partners, and even where both parties feel an underlying desire to do what is fair, how to apply that doctrine can mean very different things to the two former lovers.

Breaking up also brings out the worst in each of us, as we fly away in fear, anger and resentment. Once one partner acts vindictively, it becomes very difficult for the other partner to retain a commitment to fairness. To the extent both partners experience their exes' conduct as hurtful, there's less willingness to act fairly.

Still, the goal of fairness remains a valuable guidepost in handling dissolution issues, and there are three fundamental rules which should be considered to some degree in every break-up: honor your agreements, treat your ex with kindness, and take note of how marriage would transform your situation.

Honor Your Agreements

The legal doctrine for resolving the conflicts of unmarried couples can serve as a starting point for establishing what is fair: honor your agreements. Honoring one's agreement is a two-step process: acknowledging the agreement, and figuring out how to apply it to your particular situation.

Neither of these tasks is particularly simple. If you and your partner have a written agreement you have a set of terms to refer to, and that's where you should start. Get out your agreement and read it, and unless you are absolutely sure that its terms were set down in error, don't try to argue that you weren't agreeing to what it says.

If, like most couples, you never signed an agreement, you will have a more daunting challenge: to honestly reconstruct what the two of you agreed to. The law in most states honors both oral agreements and implied agreements, and so should you. An oral agreement is when you actually say that you are going to do something, whereas an implied agreement is a pattern of actions which implies an underlying set of principles which are known and acknowledged by both of you.

Keep in mind that you and your partner may have honest differences of opinion as to what was agreed to, and that is okay. The key thing is to be honest in your recollection, even when this isn't in your financial interest. If you believe your agreement was contingent on certain things happening, say so, but don't deny the agreement happened. You may believe your agreement was a vague one, with uncertain application to your dispute and that's okay, as long as you are clear about what you agreed to.

The second task is to apply your agreement to your current conflict. Each of you may believe the agreement has different impacts on the argument, and that is okay. As long as you agree on the underlying principles you will be well on your way to resolving your conflicts.

Treat Your Partner With Kindness

The second rule is to treat your partner with kindness -- even when he or she is not being kind. This is a hard admonition to follow, and I'm not saying I'll be able to follow it if my partner and I break up. But I'm going to try, and so should you.

Being kind can take many different forms. Fundamentally it means don't steal from your ex, don't injure or deprive him wrongfully of possessions or housing or money that is truthfully his or hers. No matter how disappointed or sad you are, and even when your ex is mistreating you, you will not accomplish anything or feel any better by being nasty.

On a deeper level being fair means trying to move on in your life, taking care of your own needs and enabling your former partner to do the same. Don't disrupt your partner's ability to earn a living, and don't start arguments. Don't waste your assets by bringing in lawyers to sort things out, acknowledge that the break-up has happened, and focus on doing what will make the rest of your lives as sane as possible. You can't avoid the emotional pain of the separation, but you can control the degree to which the break-up ruins the rest of your lives.

Consider the Impact of Marriage

Lastly, give some thought as to what would have happened if you could have legally married. While many of the rules of marriage seem inappropriate and while they certainly shouldn't be forced upon us retroactively, they offer a glimpse into what society thinks is fair for long-term relationships. To the extent we are fighting for the right to marry, it's only "fair" that we give some thought as to what marriage would mean legally.

The two key doctrines are dividing marital property and awarding spousal support. Keep in mind that not all assets are considered marital property, even if you were married. Inheritances or gifts from family generally are not marital property, nor are assets acquired prior to marriage. In addition, if the couple decides to keep their assets separate, those assets would not be considered marital property, though in most states such agreements must be written.

Everything else is generally treated as marital or community property, and whatever is accumulated during the course of the marriage as a result of the labor of EITHER partner is owned equally by both partners. This is a remarkably radical notion, and implies a level of partnership which is not often shared emotionally between the partners themselves. Even if one's earnings are twice the other's and even if one of you chooses to stay home and focus on child-rearing, your house and your bank account -- and even your debts -- are owned equally.

While it may seem unfair to impose these principles on couples retroactively that is exactly what happens with straight couples. Spouses aren't given copies of the family law rules when they get married, as the social policy is that these rules apply to all couples so there's no need to announce them ahead of time. The policy rests on a notion that this is what's fair, regardless of whether the couples agree to these rules. Indeed, because the wealthier person often has more power the law says these rules apply to couples even when they might not be willing to reach such agreements on their own.

As to spousal support, the general rule is that partners are obligated to help each other out even when the dependent partner ends the relationship. This "no fault" principle is one of the hardest concepts to accept, for us no less than for straight ex-spouses. The amount and duration of spousal support differs dramatically from case to case.

Spousal support is meant to equalize the impacts of the dissolution to allow the dependent partner to gain the skills or experience to become self-sufficient. If one partner is a primary caregiver, he or she may be entitled to support for children until they leave for college. If one partner has let her career lapse but is young enough to re-enter the workforce, spousal support might only be for a few years.

The amount of support depends on the relative income and expenses of each partner. In California there are computer programs that take into account housing and medical costs and the need to support dependents and figure out an amount based upon guidelines established by the local courts. While not mandatory, these are useful guidelines which can be consulted when thinking about how to handle your dissolution.

Must I Do the Fair Thing?

Having established what's fair in your particular situation from each of these perspectives, you then need to decide whether you want to be -- and can afford to be -- "fair" in your particular situation. This inquiry requires an honest examination of your own individual state of mind, financial condition, and emotional connection to your former lover. And while it's unlikely any judge is going to impose these rules on you the principles behind these doctrines warrant your serious consideration. Remember that your ex is someone you used to love, and a commitment to fairness is surely one of those things you pledged to one another at the outset of your relationship. It's one of the commitments you should try to honor.

For those wanting to do further research in these and other areas of interest, check out these valuable legal resources on the internet:
This is the site of Boston's Gay & Lesbian Advocates and Defenders, an excellent public-interest law firm serving the gay community. GLAD also recently issued Guidelines for resolving child custody disputes in our community.
This site features news on the efforts in France to establish a broad network of legal protections and financial benefits to domestic partners.,
This sites features current news and articles compiled by the National Center for Lesbian Rights
This site offers the monthly Lesbian/Gay Law Notes, a newsletter published by the New York lesbian/gay bar association:
The Queer Resources Directory is an excellent site, with links to a wide variety of political, social and legal groups.
This is the site of the Partners Task Force, a wonderful Seattle-based group which is working to expand support for same-sex couples.
This site contains a wealth of resources for couples including essays, access to decisions and statutes worldwide, and directories of attorneys.

Legal Disclaimer

General information provided at this site should not be treated as legal advice applicable in your particular situation. Every situation presents its own facts and circumstances, and the law may be very different depending upon where you live. By accessing this site, you are acknowledging that Frederick Hertz is not agreeing to act for you in any capacity nor providing you with any legal advice, and that you are not a client of Frederick Hertz. If you reside in California and wish to retain the services of Frederick Hertz, you may contact him at and make an appointment to meet with him.