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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