• HOLDING COURT -- When Everything Unravels and There Is No Knot
• Same-Sex Couples Redefine Marriage
• "Delving into 'Legal Affairs' for Gays"
  

HOLDING COURT -- When Everything Unravels and There Is No Knot
Reynolds Holding
Sunday, June 8, 1997
©1999 San Francisco Chronicle

By law or by choice, marriage just isn't an option for a lot of long-time couples. But that doesn't mean they cannot partake in the pleasures and pains of wedlock.

You know, things like love, sex -- and divorce.

OK, it's not actually called divorce, but the breakup of relationships that are marriages in all but name can be as wrenching, messy and expensive as the real thing.

And legally, it can be far worse.

The reason: Very few rules or legal institutions govern unmarried relationships. No family court, no alimony, no concept of community property. So when couples split, they're forced to divide shared possessions according to each partner's good will -- of which there may not be a heck of a lot left.

And that's a huge problem, particularly in the Bay Area, where so many gays and lesbians have created virtual marriages without the protection of a legal safety net.

It's also a huge opportunity, though, for a growing number of attorneys who have started to specialize in gay divorces.

Among the most experienced is Frederick Hertz, an Oakland attorney who has handled about 50 same-sex dissolutions over the past five years. Although primarily a real- estate lawyer, Hertz's gay-divorce practice has taken off.

One reason, he says, is the increased attention paid to the possibility of same-sex marriages after a judge in Hawaii ruled last year that they are legal.

So far, the law generally recognizes only marriages between members of the opposite sex. But ``as more and more gays and lesbians realize that having legally valid commitments is a good thing,'' says Hertz, ``they are making strong commitments to each other and finding that breakups are much more complicated as a result.''

Hertz also says the number of gay and lesbian couples ``skyrocketed'' about 10 to 15 years ago as homosexuality shed its radical image -- and the threat of AIDS caused many gay men to seek partners for support. Now, a lot of those couples are breaking up, and business is booming for Hertz and his colleagues.

So what happens when a serious gay or lesbian relationship goes sour? Who gets what, and how?

Well, that depends on the agreement between the partners, Hertz says. Under the best circumstances, they think through the possibilities and put their conclusions into writing. If things don't work out, they've got a plan for moving on.

More typically, says Hertz, no one thinks about breaking up -- let alone drafts a contract providing for the future. And when the end comes, the best the law can do is enforce whatever agreements can be gleaned from the couple's statements and behavior.

Hertz describes a recent case involving the dissolution of a 17-year relationship between two lesbians. They bought a home together and shared the mortgage payments equally -- but only one of the women put her name on the title.

They never talked about what would happen to the house if they broke up, and when the unthinkable occurred, the woman with title claimed the house as hers, saying her lover had only paid rent.

The lover, though, insisted the house was owned equally. And Hertz helped her prove it by showing that the payments could not have been rent because the other woman had never claimed them as income.

``You try to enforce the implied agreement of the parties,'' explains Hertz. ``It's the easiest law to summarize, but the hardest to apply.''

He offers some other examples of the pitfalls of gay divorce:

-- In a marriage, if one spouse earns no money and then gets divorced, he or she can count on alimony from the one with the big income. But in a relationship outside marriage, the poorer partner is out of luck unless he can show an implied agreement for post-separation support -- ``which is extremely difficult to prove,'' says Hertz.

-- Anything bought during a marriage in California is split evenly between the spouses if they divorce, says Hertz. But unmarried couples get what they paid for -- and that's nothing if one of the partners did all the shopping.

Hertz says same-sex breakups are often far messier than those involving opposite sexes, in part because straight people are trained to think about marriage and property.

``For lesbians and gays, there's a real reluctance to talk about money and breaking up,'' he says. ``The attitude is, `That's what married and straight people do.' Gays often have a very romantic view of relationships, and that leads to casualness.''

He also speculates that the absence of strict gender roles in homosexual relationships causes problems when couples break up. ``The power differences are less frequent but more extreme,'' he says. ``That leads to conflict, which leads to couples not dealing with stuff preventively.''

Meanwhile, the courts are only marginally helpful in same-sex divorces. Aside from a lack of law and precedent -- and homophobia in some parts of the state -- the problem is judicial ignorance about same-sex relationships, says Hertz.

``Some judges just can't believe someone would give up so much money to another person without putting it in writing,'' he says. ``They say things like, `I didn't know there were such rich lesbians,' or `Is this stuff common?' ''

So most cases are settled through arbitration or mediation, although even that is difficult when there is no clear law to guide the parties, says Hertz.

The upshot: Straight or gay, think about what you're getting into and protect yourself in writing.

``Rather than bemoan the absence of marriage, embrace the opportunity to design a relationship that fits you,'' says Hertz. ``Talk through a breakup, and learn how to structure the hard times as well as the happy ones.''

©1999 San Francisco Chronicle Page Page 8/Z1

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Same-Sex Couples Redefine Marriage
Patricia Holt
Friday, June 26, 1998
©1999 San Francisco Chronicle

What can be said to gay people about same-sex marriage except, ``You can't have one''?

Why, a whole lot more than one would expect, according to a terrific handful of books that say as much to ``straight'' society about the way law (and love) works as to those ``unmarriageable'' gay and lesbian people who keep insisting they have as much right to marry as anyone.

The mere fact that the debate rages on says a great deal about marriage as an institution in the '90s, as San Francisco lawyer Frederick Hertz indicates in Legal Affairs: Essential Advice for Same-Sex Couples (Henry Holt/Owl; 283 pages; $17.95 paperback). Hertz points out that the concept of marriage has been profoundly altered because gender roles have changed so much since the 1950s, with the concept of the ``domestic spouse'' reduced or erased in many households.

'FREEDOM TO CREATE'

By contrast, as Hertz puts it, ``there are no wives in same-sex relationships'' because there are no gender roles to begin with, and this is one of the many benefits gay and lesbian people have realized beyond the prohibitions of society -- ``the freedom to create (our) own kind of marriage'' and to make individual decisions within each partnership about finances, property, children, and, if necessary, dissolution.

Hertz offers solid legal advice for same-sex couples, and throughout he maintains a sense of humor that keeps all the ironies and paradoxes intact. ``Why should straights be the only ones to have their unenforceable promise to love, honor and cherish trap them like houseflies in the web of law?'' he quotes Katha Pollitt of the Nation as saying.

``Marriage will not only open up to gay men and lesbians whole new vistas of guilt, frustration, claustrophobia, bewilderment, declining self-esteem, unfairness and sorrow, it will offer them the opportunity to prolong this misery by tormenting each other in court.''

Hertz also quotes former San Francisco writer Eric Marcus, whose ``Making History: The Strug gle for Gay and Lesbian Equal Rights'' has become something of a bible in gay studies programs, and who has co-written star bios with Greg Louganis and Rudy Galindo.

Now in his latest book, Together Forever: Gay and Lesbian Marriage (Anchor; 347 pages; $23.95), Marcus interviews 40 ``happy'' same-sex couples who have been together from nine to 50 years. It's intriguing to see how emotional needs often are met by the conventions of marriage, whether it's legal or not; but it's fascinating to see how these couples, because their relationships have never been ``sanctified'' by marriage, have found unconventional ways to handle differences.

SLUGGING IT OUT

Here, for example, are Pam and Lindsy, ``the most expressive, passionate, emphatic and volatile communicators I interviewed,'' Marcus writes. The two have been together 20 years and are apparently notorious in their Miami Beach community for yelling at each other in public and private places. On one occasion, after they had been taking martial-arts classes together, they got in an argument while visiting New York and found themselves ``slugging it out in Central Park.''

``Pam: She kicked me! I couldn't believe it . . .

``Lindsy: This is where gay people have that built-in advantage, because we've already had to learn to work through all kinds of things. If we were a straight couple, it's possible that at that point in our relationship, we would have decided to have a kid or something. ``Pam: Or a divorce . . . I think the best thing is to get it all out. It's a horrible thing to try to pretend the problem isn't there and try not to fight, because that's a really fake kind of peace.''

Sometimes not talking is the key. Marcus wasn't the only one who made the wrong assumption when he sat down with one long-term gay couple. ``I said, `You guys are monogamous, aren't you?' Simultaneously, one said yes and the other said no.'' Marcus later found out that the one who said yes had not been monogamous and the one who said no had been.

``What is too often lost in this part of the debate,'' writes Marcus, is ``that heterosexuals don't have to make a commitment to monogamy to get legally married.'' When gays and lesbians enter into the relationships of their own choosing, they shouldn't be judged, either.

Taking self-righteousness out of the marriage is also a theme in Recognizing Ourselves: Ceremonies of Lesbian and Gay Commitment by Ellen Lewin (Columbia University Press; 288 pages; $29.95). Here again the creativity of those who have been denied marriage often changes the lives of those around them.

For example, when Khadija Imani, who was ``raised in a working- class black community that viewed all white people, but especially Jews, with suspicion and hostility,'' pledged her commitment to Shulamith Cohen, whose family of Zionist Jews is ``on the verge of being `separatists,' '' much more is joined together, the families realize, than two people in love.

©1999 San Francisco Chronicle Page Page C5

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"Delving into 'Legal Affairs' for Gays"
By Jennifer Byrd
©1999
Daily Journal - Movers and Shakers column

Little did Frederick Hertz know that a quote from him in a New York Times article about gay and lesbian breakups would spur a book deal. But it did. In Legal Affairs: Essential Advice for Same-Sex Couples, Hertz has outlined how same-sex couples can avoid legal quagmires in their relationships by taking a few precautions.

Hertz, a real estate lawyer by training, is also a recognized expert in "gay divorce law." He explained that because same-sex couples can't marry, they aren't protected by a license. So when problems, such as property disputes, arise between them they sometimes need alternative resolution methods.

"Most couples don't understand that there is a law that applies to them. [They] think that because they can't get married, they live in a world where no law applies, but the law of contracts does," said Hertz, 46.

Hertz is of counsel for Margolin & Biatch in Oakland and also practices at the Law Office of Frederick Hertz. He is gay and just celebrated his 16th anniversary with his partner. He began noticing the kinds of problems couples were facing when his gay clients came to him with real estate-related issues.

"It's hard because clients are in a very difficult emotional shape," Hertz said. "The law is so gray in this area. There are very few rules for contestants. And they don't have access to family court because they are not married."

He added: "These cases are making up greater portions of my practice. I like the variety, [but] they are the hardest cases I've ever done in my career."

At about the same time his book was published by Henry Holt and Co. Inc. last year, Hertz was asked by Nolo Press to help rewrite A Legal Guide for Lesbian and Gay Couples and to edit The Living Together Kit for heterosexual couples. Both updated books are expected to be released in March.

In his work counseling gay couples through their breakups, Hertz has seen many different problems aggravated by the limitations of the law.

For example, he said if unmarried couples separate they have no rights to attorney fees. He also said that "in absence of a palimony agreement," unmarried couples can stake no claim for financial support following a separation. So, he explained, if a man puts his lover through law school, he will have no right to the lover's wealth when the relationship ends.

"What I can do for them legally is limited. The vague laws and limited procedural resources make it difficult," Hertz said.

Hertz also explained that there is a "conspiracy of ambiguity" in most gay couples, which stems from the fear that talking about the loving relationship as if it were a business might jeopardize that relationship.

But Hertz encourages people to talk to avoid problems later on.

"They will only have rights if they make agreements [now]," he said. "It's hard dealing with people in love. These concepts of agreements and courts on a business model doesn't fit well."

He added: "Gay people are not socialized as to how relationships will work. Once married, [a couple] is a single economic entity. Gay couples are not socialized to merge economically with a lover."

But this unknown territory gives same-sex couples the freedom to design a relationship of their own.

"The community is going through an evolution. These are the first long-term relationships, and I think many are watching their friends go through it. They are taking themselves seriously and the community is doing a better job of acknowledging the issues."

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