Gay couples, not unlike straight couples, have different stories to tell, different issues to resolve. Yet since Massachusetts’s legalization of gay marriages, the “divorcing” population can be divided clearly into two distinctive sets: one group “living together outside of marriage” and the other “married.”
Here lies the tale of two couples, similar in many ways, yet differentiated by the legality of their union.
Tale One: Not Blessed by the Law
Sally and Kara had lived together for fifteen years. They had two children, Adam, who is seven years of age and Sally’s biological child, and Andrea (known as Andi), who is four years of age and also Sally’s biological child. The two women had applauded Massachusetts’s passage of gay marriage legislature, but, somehow, never married. Sally explains their failure to marry as a “funny” version of laziness, it just never seemed necessary. Kara, on the other hand, says Sally knew she had all the advantages on her side and didn’t want to give any up. After all, she was the biological mother of both children, the primary wage earner, and the owner of most of the property. The deed to the house was in her name, as was also the mortgage; the retirement funds were from her job. Kara, whom both agreed should stay home and care for the children – it being better and may be even cost effective, held a part-time job, tutoring children. She had given up her job as a court stenographer when Adam was born and, too, her chances of acquiring a state pension and own health insurance. Sally’s employment covered Kara as her significant other and, so, as long as they were a couple, health insurance was not a problem.
But now came the separation. Quite by chance, Sally met someone new. It wasn’t planned but it still had happened. And, not surprising, like so many other couples, Sally wanted a separation. The impact on Kara was far reaching. The law offered her no protection. She had not adopted the two children that she cared for and loved; it had never seemed necessary. She had no career and no obvious route back to her former profession, at least not without re-training and beginning again, almost like a novice. She had no retirement funds; the house was not in her name; and there was no contract between the women granting Kara rights to anything.
The battle had the makings of an ugly war with most of the power on Sally’s side. Fortunately for Kara, Sally believed that Kara was also the children’s mother, that she and they had a bond that could not and should not be broken. Sally did not need adoption papers to recognize Kara’s “legitimacy” as a parent. The rest of the stuff, such as the money and assets, were a different story. Sally agreed to buy out Kara’s “interest” in the house, an “understood”, if not a contractual, joint ownership, but enough was enough. She did not see that Kara had any other claim to assets compiled during their time together, certainly not holdings acquired from Sally’s employment. And legally Kara did not have any rights – after all they never entered into any contractual agreement with respect to property and they had never married.
The two women entered mediation to structure the terms of their separation. Whereas they agreed to Sally’s refinancing the house to buy out Kara’s “interest”, and to a parenting plan for each one’s time with Adam and Andy, they did not see the need for Kara to adopt the children, legitimizing her role as a parent, or did they structure any terms for child or spousal support, even interim financial assistance for Kara.
Hopefully Sally’s and Kara’s agreement to remain mothers to Adam and Andy will last over time, hopefully Sally will not wish to relocate or to have her “new” partner (or spouse) adopt the children. Hopefully, as parents, they do not need to legalize this relationship. If their parenting relationship and handshake agreement break down, Kara’s position is the one in jeopardy.
To Sally and Kara, the mediation was successful. They did not wish now, as they had not wished in the past, to fashion legal underpinnings to their separation. They were scheduled to return to mediation to tighten their agreement and to address future aspects, but chose, at least for the time being, to let things stay as is, an ending that mirrors their relationship.
Tale Two: A Union Blessed by the Law
It seemed as if Molly and Alicia had always been a couple. In the intimate suburban town where they lived and played active roles in school politics, everyone knew Molly and Alicia and their son, Ethan. It was, of course, no surprise that the couple would marry soon after Massachusetts legalized gay unions. Indeed, their wedding was a community affair, with festivities beginning soon after the church “I do’s” and continuing late into the night under the tent pitched in the backyard of their sprawling home.
If the marriage was not surprising to family and friends, their divorce was a shocker. No one expected Molly would ever give up on Alicia or Alicia on Molly. Yet the glue had become unstuck one year to the day of their marriage ceremony. Alicia was repentant but firm. She was sorry but unyielding. A divorce was what she wanted. While the circumstances of the split was not very different than that of Sally and Kara, the very fact that the couple was legally bound provided some, but not many, protections.
Now in this story, Molly was the wage earner and Alicia the stay-at-home mom to eight year old Ethan. All assets were in Molly’s name and she, too, was the biological mom. Clearly we have two lopsided relationships, at least when it comes to ownership of property. Did the marriage, that legal document blessed by the state, do the trick of evening the playing field for Alicia? “Yes” and “no” is the answer.
The one year marriage gave Alicia rights to continued coverage under Molly’s health insurance. And that was a good thing. The property acquired during the marriage, which of course, wasn’t much in twelve months, was to be shared. As for the property acquired largely in Molly’s name for the ten previous years of their relationship, the marriage provided little protection.
However, Molly and Alicia recognized the dangers of dangling agreements. They, unlike Sally and Kara, were fastidious in addressing every issue. They agreed to the division of all holdings with care and consideration for each one’s present and, to an extent, future needs. They entered into adoption proceedings to ensure that Ethan would always have two “legal” moms.
With regard to money, Alicia did not fare much better than did Kara. She did receive child support but not spousal support; she did not benefit from a share of Molly’s retirement assets, an advantage she did not have. But she, like Kara, did receive a buyout settlement for the house, since Molly clearly recognized her entitlement even if the law was no help in this area.
The security of Molly’s and Alicia’s agreement was attributable to their efforts. The legalization of their union was simply too brief to provide the armor of protection for the “weaker” partner.
“You just don’t get it,” the client explains. “I have great claims and I’ve spent over $300,000 in legal fees and two years of my life to get here. Obviously,...By Christopher Nolland