Gay couples, and straight couples who have been living together “common law,” face some of the same issues as their legally-married counterparts — and some issues unique to their situation. Mediation can help with with both sorts of issues.
This article addresses some of the issues that concern unmarried heterosexual couples who have been living together and want to separate; 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.
These issues are rather complex, and we encourage you to obtain as much specific information about your situation as you possibly can before making any irrevocable decisions.
In all of these situations, we encourage mediation because property settlements and support arrangements may be necessary and local divorce laws often do not apply. As an unmarried couple who is ending a relationship, you’ll have many of the same issues to resolve as your legally-married counterparts do, so make sure to obtain all the information you need before finalizing your agreement with your soon-to-be-ex.
Some separating heterosexual unmarried couples are shocked to discover that there’s no such thing as a “common-law marriage” in their US state or Canadian province. 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, the laws have changed.
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, for instance).
The good news is that 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.
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 — local laws concerning child custody and child support will be available in the event that you must sue. While you may have few legal rights and obligations, mediation allows you to negotiate the same terms as a divorce would provide.
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 US states do not recognize common-law marriage, and two Canadian provinces (Quebec and PEI) don’t extend support rights and obligations to common-law spouses. 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 US state or Canadian province in which the couple lives.
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? (US states and Canadian provinces 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?
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 US states that are currently common-law states or have been within the recent past: Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia. 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.
With the exception of Quebec and PEI, all Canadian jurisdictions extend support rights and obligations to common-law spouses in one form or another.
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.
What should we include in our mediated separation agreement about property and partner support if we’re not married?
You can negotiate the same issues as you would in any separation agreement. Depending on where you live, you may be under no obligation to provide support; nevertheless, you can choose to work with a mediator to make a private agreement that both of you consider reasonable and fair.
- 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?
During your mediation, you should consult a tax expert (accountant and/or lawyer) to assist you in structuring your agreement so that you won’t pay unnecessary taxes — and so that one of you doesn’t get stuck owing far more tax than the other as a result of the agreement.
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.
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 US states and Canadian provinces 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.
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. Also, if you live in a US state that has fault grounds for divorce, state law may limit property division and payment of alimony. The definition of marital fault in some states 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.
I’m a lesbian, and after I divorce my husband, 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.
If you choose to litigate custody and visitation, you’ll find that some local laws — not to mention individual judges who reflect local or personal attitudes — might 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 of 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.
I recently told my spouse that I’m 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.
I have been in a lesbian relationship for years, and now we’re splitting up. What rights and obligations do I have?
Although you’ve been living together in a committed relationship, at this time your relationship is not recognized as legal. 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.
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.
If one of you is older and/or has less income and property, you could consider negotiating some form of support or a division of property to provide some security for the future in your mediated agreement.
Your local courts may not recognize your agreement, but the two of you can honor the agreement. Your mediator and tax adviser will assist you in creating an appropriate settlement that will best serve the financial interests of each of you.
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 regions, unless you have 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.
If you or your spouse are divorcing because one of you is declaring a new sexual orientation, 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.
Of course, married or not, if you have children and you and your partner are both recognized as the legal parents of your children, 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.
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.
This article has been edited and excerpted from The Divorce Mediation Answer Book by Carol A. Butler, Ph.D., and Dolores D. Walker, MSW, JD (Kodansha America, 1999). 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.
“Nine Canadian jurisdictions have defined ‘spouse’ in such a way as to extend entitlement to or duty to pay support at the end of a common-law union.”
— Michael Cochrane, Toronto-based lawyer and author of Surviving Your Divorce (John Wiley & Sons).