Recent Articles By Frederick Hertz

When legal protections are few...
Breaking Up Is Hard to Do

By Frederick C. Hertz
© 1997
Family Advocate, A Practical Journal by the ABA Family Law Section, Vol.-20, No.-1

Making sense of the legal obstacles of gay and lesbian "divorces" begins with a recognition that like every straight divorce, every gay dissolution has three phases: (1) an actual breakup, (2) the transition to independence, and (3) postseparation conflict resolution. Each phase presents it own special challenges.

The Immediate Departure.The initial breakup most frequently triggers a series of interrelated arguments over control of accounts and other assets, occupancy of the residence, possession of personal property, payment of debts and expenses, and, for some, management of a jointly-owned business. If there are children in the household, their residence, schooling, health, and expenses need to be addressed.

Your approach in this first phase should mirror the practical nature of these concerns, so as to stabilize your client’s living arrangements in the most cost effective and efficient manner without creating new problems. Accept as a given that court involvement is impractical, honor the underlying agreements of the parties, avoid taking precipitous steps that could constrain future settlement, discourage violence and emotional distress, and minimize the economic drain. If you’ve been hired before any major actions have been taken, counsel your client to protect his or her assets and prevent the conversion of joint accounts by the other partner. Encourage your client to find an affordable place to live. Once these have been taken care of, focus on developing a more comprehensive settlement proposal.

If, as is more likely, your client hires you in the middle of the drama — or even more commonly, after he or she has been booted out of the house or lost control of the bank account — quickly prioritize your tasks to achieve workable solutions within your client’s legal budget. Minimizing real and immediate harm should be your goal, as you probably won’t have the funds or the time to gain control of every issue. Accept the informality of the process, and remain open to allowing your client to negotiate some issues directly. Even minor issues can be labor intensive, and using lawyers to settle them will create an immediate financial crisis for your client.

Given the absence of binding rules or court supervision, often there are only two available tactics; (1) skillful unilateral action, which avoids sharp counteraction, or (2) convincing the opposing party — who often will not have an attorney — to be reasonable. Neither will be easy. Indeed, even speaking directly with the opposing party may take some effort. Try to act quickly: Wrong as it may be, rejected lovers frequently call in the movers or drive off in the family car, out of the reach of any family court judge. Focus your efforts on doing the best you can to achieve your client’s essential goals quickly. See if any middle ground can be reached, advise your client of the limits on his or her possessory rights to jointly-owned property, and encourage your client to target what absolutely needs to be retained. Identify issues that can be argued over later, such as ownership of furniture or debt payments, and then work with your client on the necessities of housing, daily expenses and continued employment. Then frame your priorities accordingly.

At the same time, try to temper your client’s anger whenever possible; look for ways to improve the chance for long-term settlement. If it is clear that the truck is jointly-owned, but your client insists on using it for work, have your client send a letter offering to buy out the ex-partner’s interest. If there is a legitimate fear that a credit card will be misused or a stock account will be drained, put a hold on these accounts — but don’t allow your client to make improper use of the funds. For some clients, the lawyer may need to write a careful warning letter, meet again with the client, or even convene an evening meeting with the client and his or her friend or therapist — but be sure to get the client’s written consent before bringing others into these discussions.

Similar rules apply to occupancy of the home. Try to get both sides to agree on an equitable arrangement that provides housing for both and allocates costs in a reasonable manner. Unless there’s a prior agreement to the contrary, the party remaining in the residence should pay a fair rental value. Both parties should recognize from the start that if the total costs exceed the rental value, the financial burden should be shared. Be sure that the parties acknowledge this as a temporary solution so that later neither party will have waived claims for reimbursement. Make prompt and realistic decisions and repeatedly remind your client that a fight over every little issue will wear him or her out long before the really important battles begin.

Written documentation is essential for any agreement involving a significant amount of money or personal property — even an interim one -- and definitely where housing arrangements are involved. Draft an interim agreement that sets forth the temporary arrangements, itemizes the issues remaining in dispute, and, if possible, establishes a process for resolving them. If having a formal agreement is too overwhelming for either party, coach your client on how to write a simple letter of agreement and make sure both sides sign it. An informal letter is always better than nothing, even if only to say "I won’t remove any furniture from the house," or "I’ll promise to pay the mortgage, but I reserve the right to seek reimbursement for payments exceeding rent value." If actions were taken before you were contracted, encourage your client to write a summary of what happened. If any significant rights may have been jeopardized, write a letter clarifying your position for the record.

If there is a serious threat of theft or violence, be prepared to seek a civil restraining order that excludes one party from the residence, thus temporarily resolving both the housing and personal property issues. Domestic violence remedies are usually available to unmarried couples — although in some towns it may be difficult to persuade a judge that such an order is needed for a same-sex couple. Though such orders can be obtained in pro per, the judge’s unfamiliarity and discomfort may prompt counsel’s presence. Remember: sexist notions about the vulnerability of women come in handy to protect women against violence by men, but will not be helpful when the parties are gay.

Uncertain Outcome

Take advantage of the absence of mandatory court action, as litigation is warranted in phase one only when a party’s valuable asset is at significant risk. Remember, unlike family law motions where there’s access to a judge based on a simple petition, civil court injunctions generally mandate filing a complaint, a legal memorandum, and several declarations, which can require more than ten hours of attorney time. No matter how well drafted your pleadings, such orders are often difficult to get unless the rights are absolutely clear. Proving a strong likelihood of your client prevailing is a difficult but key injunction requirement. Once you explain to your client the costs of court action and the likely outcomes, a compromise should appear far more attractive.

2. The Separation Process. Once the parties are living apart and emotions have cooled a bit, a clearer view of the dispute will unfold, including identification of the remaining assets in dispute, allocation of ongoing household and business debts, management of common property, control over joint finances, and, hopefully, the selection of a method of resolving the remaining conflicts. Though these matters are not inherently different from those involving married couples, the absence of rules and the lack of structured resolution procedures, can put an especially severe burden on both lawyers and clients.

Your target should be to strike a balance between prompt compromises on the essential items, and careful adjudication of issues that need not be immediately resolved. Ownership of real estate and stock accounts usually is best deferred a bit, as long as short-term domestic arrangements are agreed upon. Encourage the parties to store disputed items or furniture, sell unwanted pieces, and maintain insurance policies — a stocky matter if health insurance is based on domestic partner status.

Make every effort to extricate your client from a destructive living situation. Once a stable "status quo" is achieved, your client will be better able to resolve larger problems.

Except in simple cases where all major issues can be readily resolved, a key element of the transition phase is the selection of a means of adjudication of disputes. This includes (1) identifying what is at stake , (2) determining whether both sides are willing to mediate and /or arbitrate rather than litigate, and (3) initiating the resolution process.

A great deal of persistence may be needed. Even parties with counsel may be reluctant to act, especially when one of the partner’s can’t face the end of the relationship. Forcing prompt adjudication can require a hefty investment of legal resources, so be prudent: Unless a statute of limitation or pressing practical demands loom, proceeding slowly can often lead to a compromise. The parties may be more willing to arbitrate or sell property once anger has subsided and financial realities have been realized.

3. The Aftereffects of Separation. The third and final stage of any dissolution involves the completion of the resolution process and the implementation of its results. Here again, the absence of family law procedures presents numerous challenges. Even when both sides have agreed to mediate or arbitrate, enormous effort may be required in selecting a mediator or arbitrator, arranging for payment and getting everyone to show up. Unfortunately, you will not be able to depend on "orders to show cause" to keep the ball moving.

Bear in mind that even when the parties are unable to settle underlying matters, they may be able to compromise on intermediate issues. Resolving the smaller items will greatly enhance the likelihood of an overall resolution. Be prepared for all the usual arguments over process, discovery, and logistics. Because of the lack of court supervision and the absence of procedural rules, cajoling and compromise are often your best tools. Be willing to postpone hearings, meet informally, or even eliminate some minor demands, if this will clear the air and enable the parties to resolve bigger disputes.

Outcomes are unpredictable, so stay flexible throughout the process. Make a concerted effort to frame your demands in strictly financial terms and try to convince your client to accept a financial compromise. Don’t get attached to who is "right" legally. Remember that your client’s goal and priorities are bound to shift as he or she recovers from the initial shock of the separation, and thus a solution that made sense in the early stages of the dissolution may appear unrealistic several months later. Pay close attention to whether either parties demands are shifting too often. If finalizing an agreement becomes impossible, despite encouraging discussions to the contrary, formal adjudication through either arbitration or litigation may be the only way out.

Remember to incorporate private enforcement mechanisms in any settlement, as you won’t have the clout of court supervision to move things along. For example, try to time any deed exchanges with payments or encourage your client to settle for a bit less if everything can be paid upfront. Design your procedures to reduce the likelihood of having to file an enforcement later on.

Obstacles to Settlement

In addition to the hostilities that are inherent in any dissolution, same-sex couples face particular challenges for two basic reasons: The laws are vague and few available, appropriate court procedures exist.

1. Vagueness of the Law. In most states, oral and implied agreements between married partners can be enforced if proven. Because it is extremely RARE for unmarried couples to sign cohabitation agreements, even when they own real estate, nearly every same-sex breakup involves the adjudication of such claims. One party spends more on the house or pays more of the bills for a year and wants a larger chunk of the sales proceeds. Another may claim entitlement to part of a business as compensation for helping with its startup.

Calling such claims "enforceable" only complicates the situation, as it is almost impossible to evaluate when a particular claimant has met the burden of proof. Likewise, documentary evidence is rare, and predicting who will make the best witness is difficult. The few published cases that exist rarely clarify what constitutes a valid claim. To make matters worse, discerning a reasonable compromise position is not just a matter of averaging appraisals; more likely, the party whose name isn’t on title is either entitled to half the equity or none. Excess payments are either a gift or a loan. Adjudicating most unmarried couples’ property disputes is often an all-or-nothing game, so settling will be viewed as "giving in" rather than a real compromise.

Given the broad legal principles at play, "discovery" of the facts is no easy task. Your client may not remember exactly what occurred, and depending on the emotional turmoil during the breakup, an honest narrative may be difficult to obtain. Absent days of depositions, the other side of the story may be equally elusive.

The tenor of these breakups is different from straight divorces in which many of the basic rules and facts are established and fault is usually irrelevant. Likewise, these are not typical family law cases for which decisions may be based on written documents or legislatively imposed formulas. Nonmarital adjudication can rest on a vaguely Solomonic determination of whose version of the past is more persuasive. Attempting to predict the outcome of these cases is even more hazardous because the case law that does exist rarely involves same-sex couples.

Real estate disputes are even more daunting. In nearly every state, co-owners and lovers are considered fiduciaries, and since the statute of frauds rarely applies between fiduciaries, oral and implied agreements are, once again, the meat of the matter. It may be easy to add up each party’s contribution to the down payment, but rarely is anything else a simple matter of accounting. The contract orientation of nonmarital doctrine opens up a plethora of factual disputes. For example, when incomes were combined and payment arrangements were informal, tracing who paid what may be impossible, or, at best, very expensive. Likewise, assessing the value of a renovation can be fraught with conflict. Reconstructing who approved what work and whether a gift was a loan can cost more than what is at stake. Couples who have signed co-ownership agreements can dramatically reduce the legal conflicts, but such agreements are rare, even for educated high-asset couples.

Resolving these details in the absence of legal doctrine can be especially frustrating. In most states, the law does not dictate how to split real estate commissions and other costs of sale or who has a first right to occupy or buy the residence. A right to recover attorneys fees is rare, however egregious the conduct. If one party wants to extend the dispute to leverage an emotional advantage and the other side knows that resolving the conflict will be prohibitively costly, the uncertainty of the legal outcome can make for an impossibly intractable situation.

2. Divorce Court Envy. If only the vagueness of the substantive law was our only problem! Compounding these difficulties are a vast array of procedural and professional deficiencies in the nonmarital dissolution arena. No family courts have specially-assigned judges to hear these disputes. There are no customized forms, no special assistance for in pro per parties, no counseling requirement, and no access to informal hearings on short notice. The forum for resolving property claims is the generic civil court system with all its delay, complexity, and expense.

So far, only the state of Washington has allowed heterosexual unmarried couples to resolve their disputes using the family court system, and it is unclear whether that privilege may be extended to gay couples. Some couples have attempted to invoke the family law rules by agreement, but unless all the detailed principles are spelled out in the agreement, enforceability is uncertain.

Compare the costs and timeline for adjudicating a real property partition action in your local courts with a similar divorce battle. For gay couples who cannot reach a settlement, a resolution will take even longer and be more expensive.

Quite likely they will also find themselves in a fairly hostile stetting. The unpredictable effects of homophobia and a client’s legitimate privacy concerns can convert an otherwise neutral taxpayer-funded arena for conflict resolution into a punishing, hostile, and invasive battleground. The publicity can be devastating for "in the closet" parties, and the tender emotions of love lost will find little protection in the rough-and-tumble courtrooms of most counties. Judges have little patience for these "domestic" squabbles.

Moreover, whereas civil lawsuits often settle as a direct result of court intervention — either in the form of summary adjudication orders, pretrial conferences, or statutorily-mandated arbitration — these pressures usually are too gentle or come too late in the unmarried dissolution. Few couples can wait a year or longer for a court hearing; there is no right to binding arbitration, absent an agreement by the parties; and attorney’s fees are borne by whomever decides to retain an attorney. Judicial disdain for dealing with these situations can lead to court delay, and even when you get to court, a judge’s limited experience in these matters may make approval of a particular settlement solution even harder to come by.

In theory, things should go more smoothly with a lesbian or gay judge. However, in many cases, a lesbian or gay adjudicator will not even be an option, because of the likely potential for a conflict due to overlapping social and professional circles.

The absence of an established "palimony" bar in most cities further compounds settlement problems. Ask any family law specialist about a particular case, and he or she can likely tell you how local judges will respond. Put three local divorce attorneys in the same room, feed them the same facts, and they’ll probably agree in principle as to many of the disputed issues.

By contrast, few nonmarital specialists exist, and the experienced ones will tell you, straight away, that the outcomes of these cases are notoriously unpredictable. Stories change, seemingly undeniable facts grow less certain as the case develops, the law is ambiguous in key areas, and judges are less predictable in this area than in nearly any other. Unlike most family court proceedings, you rarely know which judge will hear your case, and ascertaining the prejudices and inclinations of a mediator or arbitrator is difficult.

Deeper psycho-social conditions reinforce these problems. Although any divorcing person can be irrational and resentful at times, many lesbian and gay couples were never clear on their commitments and never formalized their interactions. Property decisions may therefore by regretted and motives may be questioned, retroactively, and thus, the lack of rules can create a horrific quagmire of uncertainty. One of the few way divorce attorneys and judges convince parties to compromise is by telling them with a fair degree of precision what the law is likely to impose. The absence of such predictability for same-sex couples can be especially problematic.

The lack of legal structure at the end of the process also makes it hard to implement a settlement solution. Married folks have many well-crated settlement agreements to copy. Because every divorce requires court action, getting a judge to confirm a stipulation and then, if necessary, enforce it is usually a manageable and affordable task. In some states, such as California, full disclosure of each party’s assets is required for a stipulated settlement, and this alone can greatly simplify enforcement.

By contrast, unmarried dissolutions are far less structured. It is rare for the parties or their attorneys to be sure exactly what needs to be included in the settlement. The range of claims can be much broader, and "everything" is rarely revolved cleaning. Likewise, the tax implications are much trickier to analyze and, if compliance is a problem, there may not be a pending court actions. Enforcing the agreement means starting afresh with a breach-of-contract lawsuit or an arbitration proceeding.

Strategic settlement solutions

Can anything be done to overcome these obstacles? Yes and, in fact, the strategies for achieving settlements can be found in the very nature of these obstacles. If you and your client — as well as your opponent — confront these legal realities and are able to argue the facts while being cognizant of these limitations, fair settlements are achievable.
    • Recognize the uncertainties. Start the process by admitting to yourself and to your client how difficult proving the case will be, whatever his or her position, and how expensive the process can be. Going to trial can cost a fortune, and once you get there, judges and arbitrators have broad equitable powers. Don’t pretend yours is a "slam dunk" case. Acknowledge the prospects of an unexpected loss, which by itself should temper the most extreme demands.
    • Do your homework. Despite all the cautionary tales of legal uncertainty, always take the time to know the law and understand the facts of your case, especially if this is a new area for you. If you can show your opponent that your proposal accurately reflects the applicable principles and is supported by the facts, you’ll be far more persuasive.
    • Focus on practical solutions. Don’t view your case as a chance to make new appellate law, and don’t allow your client to use the breadth of the possible claims to prove who was really right. Concentrate your efforts on saving money; helping your client find decent housing; and preserving access to children, pets, and vital furniture and assets. The theoretical analyses of these cases is fascinating but rarely helpful to your clients, so put your speculation aside and strive for practical solutions.
    • Help your client discern what is truly important. Remember, your job is not to act as a mouthpiece for your client’s anger or resentment. Rather, move your client to a more rational plane where she or he can evaluate what is most important and decide what to let go of. If you start arguing over every sentimental trinket, chances are you’ll use up your retainer before accomplishing anything of importance.
    • Avoid spinning your wheels. As attractive as mediation and negotiation can be — and they should definitely be considered — don’t squander your client’s funds on pointless rounds of bargaining. Some cases just don’t settle. If the first round of mediation is not productive, hold off discussions for a while until emotions cool. Be ready to "go to daddy" for a decision. Part of your job is to evaluate when the parties are too angry or too greed to compromise. For these folks, a quick and equitable arbitration will be preferable to protracted and expensive mediation.
    • Narrow the disputed issues. When the fights first break out, getting a handle on any one problem will seem impossible. But in fact, clearing up one problem at a time will actually make it easier to settle the rest. Lessening the areas of conflict and improving the quality of both partners’ lives will enable them to make more rational decisions about whatever is left to resolve.
    • Be professional. It really doesn’t help to embody all of your client’s emotions, however justifiable they may be. Be businesslike in your dealings with the opposing attorney or party and save your temper for really big-deal dramas. You are being paid to accomplish practical goals, not to act out your client’s innermost feelings.
    • Avoid the courtroom whenever possible. Once you weed out the trivial matters and establish a holding pattern that allows your client to re-establish a semblance of normal life, assess the remaining areas of conflict. Give serious consideration to binding arbitration, which is quicker, cheaper, more private, and usually as fair as litigation.

Arbitration that focuses on narrowed areas of conflict should take no more than a day. If you’ve minimized the ugly scenes, you should be able to exchange information and documents without formal discovery. You may have to give up appellate rights and risk having the decision based on fairly loose grounds, but in this area of law, appeals are rarely successful and the courts are likely to be just as nonlegalistic in their rules.

    • Be calm, be humble, be practical, be persistent, and be smart. Settling these cases will not be easy, but remember: If it were, you wouldn’t have been hired in the first place.

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