Unmarried and Gay/Lesbian Issues

This article addresses some of the issues that concern unmarried heterosexual couples who have been living together and want to separate, and who may or may not be living in states that recognize common-law marriages; and gay men, lesbians, and transsexuals who have either been living in a same-sex relationship or who are legally married and seeking a divorce.

By Carol A. Butler, Ph.D., and Dolores D. Walker, MSW, JD
Updated: May 13, 2015
Divorce Mediation

QUESTION 1: What if we aren't legally married?
QUESTION 2: How is common-law marriage legally defined? If we meet that definition, can we mediate an agreement that will be enforceable through the court?
QUESTION 3: We're unmarried and we don't live in a common-law state now, but we did in the past. Can we mediate our separation?
QUESTION 4: I thought we had a common-law marriage, but now that we're separating I have found out that we can't meet the requirements. My spouse says there's nothing to talk about. Is that true?
QUESTION 5: What should we include in our mediated separation agreement about property and partner support if we're not married?
QUESTION 6: We have children but we never married, and now we are splitting up. Can we use mediation to provide for our children in the future?
QUESTION 7: How would bankruptcy affect our separation agreement if we aren't married?
QUESTION 8: Who gets our house? My lover bought it and the title is in her name but I completely rebuilt it.
QUESTION 9: I'm going to tell my spouse that I'm gay and I want a divorce. How is that going to affect the settlement?
QUESTION 10: I'm a lesbian, and after our divorce I plan to live with my lover. How will this affect custody and visitation? QUESTION 11: I recently told my spouse that I am a transsexual. Can we use mediation to get divorced?
QUESTION 12: I have been in a lesbian relationship for years, and now we are splitting up. What rights and obligations do I have?
QUESTION 13: My lesbian partner gave birth to our child and we agreed that the child would have two mothers, but now that the relationship is over, she wants me out of the picture. What can I do?

The issues addressed in this article are rather complex, and we encourage you to obtain as much specific information about your specific situation as you possibly can before making any irrevocable decisions. This article addresses some of the issues that concern unmarried heterosexual couples who have been living together and want to separate, and who may or may not be living in states that recognize common-law marriages; and gay men, lesbians, and transsexuals who have either been living in a same-sex relationship or who are legally married and seeking a divorce. In all of these situations, we encourage mediation because property settlements and support arrangements may be necessary and state divorce laws often do not apply.

Common-law marriages

Some separating heterosexual unmarried couples are shocked to discover that there's no such thing as a "common-law marriage" in their state. The original purpose of legalizing common-law marriages was to offer couples the protections and benefits of legal marriage when it was difficult to get married because of the long distances clergy would have to travel to perform weddings. In recent years, with the increasing number of couples living together without necessarily intending to get married, most state laws have been changed and no longer recognize common-law marriage. (See Question2: "How is common-law marriage legally defined?")

If you can establish that you are legally married, you'll have to follow all the rules of your state concerning divorce. ยท Unmarried heterosexual couples who do not have common-law marriages
We encourage mediation for common-law couples because courts are seldom available to resolve issues through litigation These issues can be mediated between the two of you. However, you should be aware that even if you have a written contract with each other about property and/or support issues, some judges might void the contract if one of the partners petitions the court to have it invalidated, interpreting it as a contract for sexual services.

The good news is as long as you act in good faith, your contract will remain as you intended, and in many jurisdictions it will be considered an acceptable basis for the purpose of settling property and support issues. Issues covered in these contracts might include loans, family gifts, the purchase of homes and furniture together, the responsibility for debts, and repayment to one of you for giving up a career to move. (See questions 4-6 for more about this.)

Gay/Lesbian issues

Although in 1996 the Defense of Marriage Act severely limited benefits to same-sex domestic partners, each year thousands of same-sex couples continue to exchange vows in religious ceremonies performed by sympathetic clergy.

Currently, lawsuits are under way in several states to determine whether same-sex couples have the right to marriage licenses, civil marriages, and specific domestic partnership rights. At the same time, in the last few years, at least 28 states have prohibited gay/lesbian marriages. (See questions 12 and 13.)

If you and your spouse are divorcing because one of you is changing lifestyles, there may be emotional as well as legal issues to consider. This may be a time when one or both of you are suffering feelings of abandonment, betrayal, and anger. These feelings may create barriers in making the best financial and parenting plans for the future. Mediation will be particularly helpful for you since you can address both the emotional and legal aspects of your separation. (See questions 9-11.)

Children

Of course, married or not, if you have children and you and your partner are both recognized as the legal parents of your children, your state's child support guidelines will be available to use as a basis for your financial and parenting arrangements. However, you will probably still need to negotiate all your other financial issues through private mediation. If only one of you is the legally recognized parent, things are more complicated. (For more information, see Question 6: "We have children but we never married, and now we are splitting up. Can we use mediation to provide for our children in the future?")

Mediation is almost always the best way for an unmarried couple who is ending a relationship to proceed. You'll have many of the same issues to resolve as your legally-married counterparts, so make sure to obtain all the information you need before finalizing your agreement with your soon-to-be-ex.

QUESTION 1: What if we aren't legally married?
Whether or not you're legally married, mediation is always available to help you resolve money and custody issues. In a long-term relationship, couples frequently become quite intertwined financially, and they need to resolve property issues equitably. You may have some entitlement, based on local regulations about unmarried partners, to health insurance or to other benefits. Your mediator will know about the situation in your area.

If you have children and your partner won't agree to mediation, depending on whether one or both of you are recognized as the legal parents of your children -- either as the biological parents or by way of adoption -- your state's laws concerning child custody and child support will be available in the event you must sue. Your rights and responsibilities with respect to all other issues depend on why you aren't married, and this article discusses several possible situations.

If you don't have a legal marriage, alimony and equitable distribution of property will not be protected in bankruptcy proceedings. Since the protections in divorce laws don't extend to unmarried couples, the applicable tax laws might also transform what you intended as alimony or equitable distribution of property into taxable gifts.. On the bright side, you aren't obligated to pay each other's debts -- which might be the case in some states if you were married.

While you may have few legal rights and obligations, mediation allows you to negotiate the same terms as a divorce would provide.

QUESTION 2: How is common-law marriage legally defined? If we meet that definition, can we mediate an agreement that will be enforceable through the court?
The majority of states no longer recognize common-law marriage. However, common-law marriage is strictly defined where it is legally recognized, although the definition varies from state to state. The term refers to a relationship in which an unwed heterosexual couple has lived together as husband and wife for a specific period of time required by the common-law state in which they live.

If you need to go to court to prove that you held yourselves out as married, here are some of the things you might have done which would help the court decide in your favor:

  • Did you intend to be known as husband and wife?
  • Did you act as though you were married?
  • Did you live together? (always required)
  • How long did you live together? (states vary on time required)
  • Did you introduce yourselves to others as husband and wife?
  • Did your lease indicate that you were husband and wife?
  • Did you sign a hotel register as husband and wife?
  • Did you receive mail as the spouse?
  • Did you register with any tax, voting or other authority as married?
  • Did your bank account indicate that you were married?
  • Did your utility bills indicate that you were married?
  • Did you represent yourself to your employer as married?

If you meet the requirements, you will be considered legally married. That means you will have to get a divorce to finalize your settlement about property, children, and estate matters. Whether or not your common-law marriage is recognized by your state, you will be able to mediate the terms of separation, child support and division of property.

Here is a list of some of the states that are currently common-law states or have been within the recent past.

  • Alabama
  • Colorado
  • District of Columbia
  • Georgia
  • Idaho
  • Iowa
  • Kansas
  • Montana
  • Ohio
  • Oklahoma
  • Pennsylvania
  • Rhode Island
  • South Carolina
  • Texas
  • Utah

While Washington State doesn't recognize common-law marriages created in that state, it does recognize "meretricious" relationships of heterosexual couples. So, in Washington State, if you have lived together in a heterosexual relationship that was like a marriage, you can divide your assets according to equitable distribution as if you had been married.

QUESTION 3: We're unmarried and we don't live in a common-law state now, but we did in the past. Can we mediate our separation?
If the two of you want to mediate, there is nothing standing in your way. While some states don't accept common-law marriages made within their own state, you may be able to establish your marriage in your current state by proving that you used to live in a common-law state and met that state's requirements for a common-law marriage. The court in your state may recognize the laws of the other state for purposes of dividing assets and granting a divorce, and then you'll be able to mediate and enforce your agreement in the state where you currently live.

This is true even if the state where you formerly lived has changed its laws and no longer recognizes common-law marriages. For example, Ohio stopped recognizing common-law marriages in 1991, but if you lived together there in 1990, your marriage may be recognized for the purpose of getting a divorce.

New York recognized a common-law marriage where the couple visited Pennsylvania for 16 days over a period of several years, and told family members in Pennsylvania they were married. In other instances and in other states it will be much more difficult to establish a common-law marriage.

QUESTION 4: I thought we had a common-law marriage, but now that we're separating I have found out that we can't meet the requirements. My spouse says there's nothing to talk about. Is that true?
Even though you don't have the rights of a spouse, you can mediate an agreement to resolve financial and parenting arrangements- but both of you must agree to mediate. (See Questions 5-8.)

QUESTION 5: What should we include in our mediated separation agreement about property and partner support if we're not married?
You should negotiate the same issues as you would in any separation agreement. If you live in a state that recognizes common-law marriages, and you meet the state's definition, there will be guidelines to follow. Otherwise, you are under no obligation to provide support, but you can work with your mediator to make a private agreement.

Ask yourself:

  • How do we want to divide our property?
  • What are the monetary and non-monetary contributions each of us have made?
  • Has one of us stayed home to take care of the house?
  • Has one of us moved so that the other could improve his or her business or career?
  • Have there been large gifts from either of our families? Or to each other?
  • Do we have large debts? Who is responsible for what portion of the debts?
  • Do we have debts to family members or to each other? Should these debts be repaid? Or forgiven?
  • If we have been in a long-term relationship, does one of us have fewer monetary resources and need some kind of support -- and for how long?
  • Are both our names on the mortgage or lease? Can we sign the title over? If both our names must continue to be included on these documents who is responsible for payments?
  • Which of us gets the car?

Use very definite language in your agreement concerning mediation and binding arbitration as the courts will not be accessible to enforce the partner support part of your agreement.

During your mediation, you should consult a tax expert -- the IRS doesn't recognize non-marital relationships, and could interpret the property part of your settlement as subject to gift taxes and the support part of your settlement as subject to income taxes. Your tax expert will assist you in clarifying the terms in your agreement so that you won't pay unnecessary taxes.

QUESTION 6: We have children but we never married, and now we are splitting up. Can we use mediation to provide for our children in the future?
If both of you have been legally defined as the parents of the children (on the birth certificate, through adoption proceedings, or DNA testing) it will be easier to negotiate and enforce parenting arrangements and child support.

You will find the child support guidelines helpful in your negotiations even if only one of you is the legal parent or if you are a same-sex couple. If you choose not to use the guidelines, you can mediate a private agreement in which the legally recognized parent agrees to the terms of visitation, custody, and child support. This agreement will describe the understanding between the two of you, but if it is later challenged by the legally recognized parent, the courts do not have to enforce it. The courts usually expect the legal parents to support the children.

QUESTION 7: How would bankruptcy affect our separation agreement if we aren't married?
Since you don't have the protections of marriage -- which would insure that alimony and child support are still paid (not dischargeable) in the event that your former spouse filed for bankruptcy -- you must proceed cautiously. If your former partner files for bankruptcy, even if you have a written contract, you may lose your claim to the financial settlement on which you have already agreed.

Although even this step isn't guaranteed to protect you, our recommendation is that any debts your partner owes you be secured (guaranteed) by property not vulnerable to the bankruptcy process. This makes it more likely that your agreement will not be nullified by the bankruptcy court. Check with a bankruptcy attorney about the best course of action in your state.

QUESTION 8: Who gets our house? My lover bought it but I completely rebuilt it.
You need to work this out in mediation. If your partner holds title to the house and you go to court without a written agreement, it will be costly and, at most, you might get reimbursement for the time you spent rebuilding the house.

Is your former lover planning to sell the house? In mediation, you can explore ways to divide the proceeds. Perhaps you can agree to a percentage of the profit from the sale. Some of the factors to negotiate in mediation include: determining the value of the house; deciding on a minimum sales price; and deciding whether you will have an option to buy or a right of first refusal when the house is sold.

If both you and your former lover want to continue living in the house, this is an issue you'll need to mediate. If he or she holds the title to the house, you may need to negotiate a tradeoff or payment for your contribution to the value of the house so that it's possible for you to move elsewhere.

It's important in negotiating these issues to understand that you won't have the tax advantages of a married couple who transfer assets when they divorce. For example, as an unmarried couple, if you transfer assets at the time you separate, you may be subject to gift taxes or possible capital gains taxes. If one of you trades your interest in the house for payments to be made over a period of time, you may be subject to income taxes. Always consult with your mediator and your tax adviser as to the best way to transfer assets or receive income.

QUESTION 9: I'm going to tell my spouse that I'm gay and I want a divorce. How is that going to affect the settlement?
Your being gay shouldn't affect the settlement if you use mediation, since you remain in control of the decision-making process. If you litigate, however, the judge may have negative attitudes about homosexuality that could jeopardize your visitation with your child and possibly your financial arrangements.

In mediation, you can agree to use no-fault grounds. If you litigate, and you or your spouse uses fault grounds, the laws in your state may limit property division and payment of alimony. In some states the definition of marital fault includes such grounds as abandonment (physical or sexual), adultery, frivolous waste of marital assets, or fraud. Some of these may be applicable to your situation, so clearly mediation will be the better approach.

QUESTION 10: I'm a lesbian, and after our divorce I plan to live with my lover. How will this affect custody and visitation?
You need information before you begin mediation. Mediation is a good way to develop parenting arrangements that ensure quality time with your children. If you let a judge decide about your access to your children, there might be limitations you'd find unacceptable.

When custody and visitation are litigated, some states treat homosexual relationships and heterosexual relationships equally, and in those states there would have to be significant proof that your relationship is harmful to your children before custody or visitation would be denied to you by the court. Other states, as well as some individual judges who reflect local or personal attitudes, might be inclined to deny or limit custody or visitation without proof of harm. For example, in a recent Georgia ruling, the judge refused permission for a lesbian mother to visit with her young child in the presence of her female partner.

Inform yourself about court decisions in your community concerning gay/lesbian parents to get an idea what your bargaining position would be if you went to court. Check with local gay/lesbian centers, websites, or lawyers known to be helpful to gays and lesbians. With this information you'll be in a better position to mediate.

QUESTION 11: I recently told my spouse that I am a transsexual. Can we use mediation to get divorced?
You certainly can. In fact, given that the courts and some judges are not always sympathetic to transsexuals, mediation is a better alternative to litigation. Just as we would encourage you to seek a mediator who has expertise in all areas that are especially important in your situation -- complex finances, a family business, etc. -- here we would encourage you to choose a mediator with a mental-health background who would be able to understand, anticipate, and work out the emotional issues with you and your spouse.

We have encountered emotional issues in these circumstances that can make negotiation difficult. One or both parties is usually angry at the start; and feelings of betrayal and rejection are common. The transsexual partner may feel angry that his sexual identity is not accepted and that his fitness as a parent is being questioned. One or both partners may also feel guilty or fearful about the same or different issues. This can lead to inflexible demands, a power imbalance, or an impasse.

You must address the underlying concerns of both of you when you begin mediation. For example, in negotiating parenting arrangements, you'll both need to express your concerns about visitation arrangements, and the mediator will help you to create a plan with which both of you can be comfortable. It will be helpful to address the stereotypes and myths concerning transsexual parenting, and you may need to assure your spouse that the usual boundaries between parent and child will be observed.

We offer some examples below from our mediation practices. While we are aware that these stories sound stereotypical and controversial, they are true stories.

Dolores did a mediation with a couple where the wife had been supporting her transsexual husband throughout their five-year marriage. Shortly before the beginning of the mediation, she refused to provide further support. In mediation, the couple reached an impasse until their unspoken fears were explored.

Both were angry. The husband believed that by refusing to continue to support him, she rejected his sexual identity. But through mediation he learned that her real concern was about continuing to make support payments, not about his identity, which she had grown to accept. Once he understood her, they were able to negotiate a settlement in which he continued to receive support, but for a limited time.

If there are children, mediation offers a much better chance to create a more reasonable solution than a potentially unfriendly and unpredictable legal system. Carol had a post-divorce consultation with a couple where the issue was that the transsexual husband had begun permanently cross-dressing as soon as the divorce decree was issued. He insisted that the children address him by a female name, and frequently would leave his lingerie hanging in the bathroom when the children visited. His former wife had come to accept his cross-dressing and felt he had a right to his sexual identity, but she was concerned about the effect of his more recent actions on their two young children. She wanted to negotiate some boundaries for the children's visits with him, and threatened to go to court to limit visitation. The father realized an unsympathetic judge might take away some of his visitation rights, and he agreed to work out some new rules in mediation.

Carol also encouraged the couple to consult with a child therapist and included additional language in their agreement providing that if they had future parenting disputes, they would return to the therapist as well as to the mediator.

QUESTION 12: I have been in a lesbian relationship for years, and now we are splitting up. What rights and obligations do I have?
Although you have been living together in a committed relationship, at this time your relationship is not recognized as legal. A "palimony" suit is not an option, since no state at this time recognizes palimony suits.

You may have some entitlement, based on local regulations about unmarried partners, to health insurance or to a rented apartment- your mediator will know about the situation in your area. However, with a few exceptions, the more accurate question is "What rights and obligations don't I have?"

You are not obligated to pay each other's individual debts, which you might be if you were married. If your partner had a child during your relationship, you are also not obligated to pay child support. However, you may want to negotiate some child support in exchange for visitation or partial custody in order to insure your continued role in the child's life. (Also, see Question 3: "We have children but we never married, and now we are splitting up. Can we use mediation to provide for our children in the future?")

Your only real option is to negotiate a separation agreement, which can be signed and enforced as a contract. Issues covered in this contract might include loans, family gifts, the purchase of homes and furniture together, the responsibility for debts, and repayment to one of you for giving up a career to move. (Also, see Question 5: "What should we include in our mediated agreement about property and partner support if we're not married?")

Since the less-moneyed partner will not be eligible for benefits based on the other partner's social security, if one of you is older and/or has less income and property, you can negotiate some form of support or a division of property to provide some security for the future in your mediated agreement.

Whether or not the courts will recognize your agreement depends on the laws of your state, but the two of you can honor the agreement. Your mediator and tax advisor will assist you in creating an appropriate settlement which will best serve the financial interests of each of you.

QUESTION 13: My lesbian partner gave birth to our child and we agreed that the child would have two mothers, but now that the relationship is over, she wants me out of the picture. What can I do?
This is a painful situation for all concerned. Although laws in this area are being challenged in several states, unless you legally adopted the child, at the time of this writing your relationship has no legal standing. Mediation is your best bet so that you can try to negotiate an agreement in order to spend time with the child. However, agreements about custody and visitation in lesbian/gay relationships provide for an understanding between the couple, but if the agreement is challenged by one of the involved parties, the court can decide the agreement is not in the child's best interests and ignore it.

Since you have no legal right to visitation, you might try to make the prospect of your visits with the child attractive to your former partner. You might offer to arrange a brief visit at a time that is particularly appealing to her -- perhaps so she can work late, be free to take a class or do something else for which she'd need a baby sitter. You might also want to discuss child support, since taking some responsibility for the child comes along with visitation.

If your former partner seems to be immovable and limits your contact with the child, keep in mind that the situation may change as things between the two of you settle down. Keep in touch with the child with cards, letters, phone calls, e-mail, and any other non-controversial way. Discussing the situation with a therapist may help too, since working through some of the emotions may help you develop a practical plan with your former partner.


This article has bee edited and excerpted from The Divorce Mediation Answer Book by psychotherapist and mediator Carol A. Butler, Ph.D., and psychotherapist and attorney Dolores D. Walker, MSW, JD. In this accessible question-and-answer guide, two practicing experts offer sound advice about the divorce mediation process. You'll find answers to questions such as: what are the advantages to mediation; how do we find a mediator; what if we don't agree with the mediator's recommendations; and what are the best ways to help our children survive the process? There's also a terrific resource section that lists mediators around the USA as well as other sources of valuable information to help you save time, money, and emotional energy.

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April 28, 2006
Categories:  Legal Issues

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