Domestic Partnerships Dissolution Attorney

The Experience of Domestic Partnership Dissolution
Can Be Very Different From That of Mixed Couples in Divorce

The experience of domestic partnership dissolution for same sex couples is in many ways quite different from the experience of divorce for mixed gender couples. Although the law in California effectively now treats the dissolution of a domestic partnership as though it is a divorce - and so it is relatively easy today for lawyers to advise domestic partners about their legal rights - partnership break up for same sex couples is potentially more complex than it is for 'straight' couples because often there are undercurrents that do impact the process financially, emotionally and psychologically.

Family law attorneys should endeavor to have a background in the social sciences in order to be effective advocates and guides for clients of all genders, sexual orientation, skin color and cultural history. The need for this sensitivity and attention is well illustrated within the context of domestic partnerships and same sex marriages.

Until very recently there were no legal and few cultural supports for same sex persons who desired to make a life together. The partners themselves did not have a framework that provided the type of assumptions and identifications that opposite gendered couples assume as their birthright, and there was more than just a lack of societal understanding and empathy for persons in these relationships - there was a hysteria, homophobia and often much worse. "The law" was better known to same sex couples or gay or lesbian individuals as a basis for taking children away from mothers or for prosecuting men on account of sexual conduct. This is one reason why the benefits of mediating your same sex disputes are intuitively obvious - government sponsored remedies have historically been tragically inadequate.

One cannot competently assist gay and lesbian partners through their relationship transitions in a compassionate and holistic way without some education in the nature of their experience. For this reason many lesbian or gay clients are suspicious of 'straight' attorneys and justifiably reluctant to entrust such attorneys with their financial and emotional lives. Unfortunately, however, this can narrow the options and opportunities for creative dispute resolution whether through mediation or litigation.

What are some of the ways that the gay and lesbian experience of divorce may differ from that of 'straight' couples?

Prior to ten years ago same sex couples were effectively excluded from the family court system. They had no rights as between themselves relating to property they accumulated during the relation beyond what might be established on the basis of civil contract law. It was not unusual for title to property to be maintained in the name of one partner for tax or privacy reasons. Upon splitting up this dramatically undercut the less economically empowered partner's rights to obtain their share. In order to overcome the absence of any legal framework that applied to them they were forced to use the California Supreme Court's Marvin decision to assert their rights. While the Marvin case created the concept of "joint pooling agreements" and "palimony," that theory as a basis for help from the courts is notoriously weak.

While today more than a dozen states have legitimized civil unions, or domestic partnerships, or same sex marriage the vast majority of states have not. Laws motivated by homophobia and hostility to same sex relationships continue to dominate the legal landscape, and often they frame the dissolution in a manner which disadvantages one or both parties - sometimes severely. 'Straight' people typically have little reason to consider what it might feel like to marginalized because their very relationship has been de-legitimized whether by the courts, government, family, friends or co-workers. But these differences do exist.

This has changed somewhat in certain states like California, but for same sex partners a revolution in conceptualizing their relationships is occurring within the context of one or two generations and this is bound to create all kinds of legal and emotional stressors that the rest of the population may be entirely ignorant of.

In addition, the law keeps changing. For instance, in California in 2005 an overhaul of the Domestic Partnership statutes resulted in those who had previously registered being forced to decide whether to opt out or not by terminating their their partnership by a given date, or they would be bound by the new rules. Some legal commentators have likened this to a game of "musical chairs," where same sex couples can't be sure exactly where they will find themselves when the music stops.

Attributes unique to the same sex legal experience may include:

• For some gay and lesbian partners there has been a limited awareness of how marital rules will play out. These new rules may be in contrast with how the partners have structured their financial lives, and may differ from their private understandings and intentions. This can create a disconnect between the expectations held by the parties and the assumptions of the courts and the application of the law.

• The new rules may be adverse to one party alone, unlike more gender neutral rules that affect hetero spouses in divorce. The experience for the underpowered partner can seem like an aspect of a broader social oppression.

• The personal loss that all people in relationship transition inevitably suffer can be compounded by a sense of societal injustices when rules derived from traditional opposite sex couples are applied without a sensitivity to the distinct life experiences of same sex couples.

• Some same sex couples enter into domestic partnerships to share in insurance benefits or in order to gain social recognition for the validity of their relationship. In many ways lesbian and gay couples have lived outside the law for generations, and it can be a shock to discover that possibly unintended consequences and obligations now apply. An example is the high earning partner who now may be faced with an obligation to pay partner support when that was not fully considered when the parties became RDPs. Husbands and wives have generations of experience of the notion that if the relation dissolves an alimony obligation may arise - that simply has not been the same sex experience.

• Unlike the cultural programming for heterosexual married couples, the understanding between gay or lesbian couples about monogamy is sometimes different (particularly where becoming parties become RDPs to gain access to health insurance or as something of a political act) than what is conventionally assumed. This can lead to the lack of a common understanding between partners that can create challenges for dissolution proceedings, especially as it impacts the emotional dissolution.

• Deep complications may arise where one partner is a parent with a biological connection to a child the parties raise together, and the other is not. Parental relations that were intended to be the same as if a child was the joint issue of two different sex parents can become severely limited upon a breakup if there has not been an outright adoption. This outcome may be very different from what the parties promised and expected and deeply affect their attitude towards the proceedings and each other.

We can assist same sex partners in their relationship transitions in a balanced and efficient manner. If both same-sex spouses reside in a state that does not recognize the legality of their union and so will not grant a dissolution, Family Code section 2320 allows them to file in California even if they are not residents of this State.