"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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