I remember sitting in the Unitarian church on 14th Street in Washington, D.C., several years ago, watching two gay friends exchange vows and thinking, This is going to be a spectacular breakup. From that pew, I could only envision hopelessly intertwined finances, a web of assets to disentangle, pets to put up for adoption, station wagons to sell, flatware sets to divide.
After all, tattoo removal and gay divorce are growth fields, as John Waters has quipped, and just as lasering an exs name from biceps is a fairly new process, so is dissolving same-sex unions. Weve grown from living in the closet with our own apartments to living together in houses weve bought as a couple, says David Pisarra, a California-based family-law attorney specializing in gay relationships. We have nest eggs. We have stocks and dogs.
And children. And joint savings accounts and retirement funds and shared health benefits. And civil unions and domestic partnerships and, in one little blue state, marriage. But what we dont have is any semblance of uniformity when it comes to the delightful logistics of gay divorce. A straight married couple has the federal government and a couple millennia of precedent behind them. For same-sex couples, where you live and how well youve planned can spell the difference between solvency and bankruptcy, joint custody and estrangement, an amicable division of assets and a suspicious house fire.
Few hard stats exist on gay breakups because most long-term couples cant or dont register with their state, and because some states that formally recognize same-sex couples dont track how often they split up. As of January 2006, according to the Massachusetts Department of Public Health, over 7,300 gay marriages had been recorded in the state, but because divorce statistics do not differentiate between heterosexual and gay couples, its impossible to know how many such unions remain extant. It is known that of Vermonts nearly 10,000 same-sex civil unions recorded as of August 2006around 80% of which were performed for nonresidentsonly about 100 have been dissolved, but this number is deceptively low. Anecdotal evidence suggests that many gay couples dont formally dissolve their unions, be it for practical reasons, apathy, or legal impedimentswhile out-of-state couples may enter civil unions in Vermont, state residency is required for legal dissolution.
But because few cities and states recognize gay unions, gay divorce is more accurately defined by slugging it out for accumulated goods and savings. Its exactly like divorce, except that a lot of times theres one party thats left themselves very unprotected, says Pisarra. Without the protections of marriage, it can get ugly very quickly.
In November 2006, Wisconsin was among the latest seven states to pass marriage protection amendments, making it one of 26 U.S. states to constitutionally ban same-sex marriage. Sandra Holtzman, a family-law attorney in Madison, Wis., says, It gets really messy for separating couples who havent planned ahead for a potential breakup. Im thinking of several cases where there were children involved and one parent tried to void the guardianship [of the other parent]. People say, Why would they do that? And I say, Because they can. My heterosexual clients would do the same thing if they could. Theyre mad, theyre vengefulits nasty stuff.
Holtzman knows firsthand. In the mid 90s, despite copious documentation that linked her with her ex-partner, Elsbeth Knott, a post-breakup custody fight for the child they raised together proved how shaky their status as a couple was. As the nonbiological parent, Holtzman was barred from seeing her then4-year-old son for months after her 1993 breakup with Knott, the biological mother. Their custody trial went to the state supreme court, where Holtzman finally won visitation rights in 1995; the battle cost thousands more than if there had been a precedent to guide it. It was the first case in the country to recognize the rights of someone with a parentlike relationship to a child, yet over a decade later, Holtzman says same-sex couples in conservative states still need something like a prenuptial agreement to avoid a similar ordeal.
Eww, a prenup! The phrase conjures images of unsavory gold diggers and the thrice divorced. But gay couples without state recognition often need some kind of cohabitation agreement for basic breakup protection. Its like insurance, says Pisarra. While some couples find discussing a potential breakup tacky, others (often ones with a wide income disparity) giddily hash out prenups like extravagant vacation plans. Ive had people say, If my relationship lasts 10 years, this is how it should dissolve. If it lasts five years, this is how it should dissolve, says Holtzman. You see those contracts where there are a lot of assets involved. Its used as an equalizer.
If all this sounds a tad cutthroat for the early days of a budding romance, consider banging out such details in the midst of a divorce. Without the kind of presumptions built into heterosexual marriages (alimony, child support, etc.), gay divorces take place in a vacuum with few models to follow and a string of minutiae to debate: How will savings be divided? If one parent has to travel to see the kids on weekends, who pays for that? For the breadwinner, the prenup provides predictability. The greater earner at least knows what their responsibilities are, says Pisarra. If its a 10-year marriage, that might mean they only have five years of spousal support to pay. Its just as important if youre a stay-at-home partner. Even if one partner is bringing in $2 million a year, the other partner is taking care of the home, making sure the parties are beautiful, the kids are taken care of, the dogs are walked, and the cats are fed, creating a potential basis for long-term spousal support, says Pisarra. But if your ex fights you on it, proving the worth of your homemaking efforts can feel like an audit. It involves digging through e-mails, notes, says Pisarra. Anything that establishes a history.
Depending on the breakup, a long history together could even turn against you. Three years ago lesbian comedian Judy Gold left Wendy, her partner of two decades. We were enmeshed in every possible way, Gold says. Everything was ours. Wed been together since we were 22 and 23 respectively, and we started with nothing, so whatever we had, wed gotten together. The house was in both their names, Wendy held the retirement fund, Gold was on Wendys health insurance, and they were registered domestic partners. Because their lives were so intertwined, everything has been such a fight and a struggle, Gold says. We spent a lot of money on mediation. Theres nothing set in stone.
Mediation will cost you. Couples with assets can expect to pay at minimum $5,000 for it, says Pisarra. Then there are the penalties and fees specific to unmarried couples. For example, if Judy and Wendy had split their retirement fund, it would have been subject to a substantial tax penalty because they werent married. Instead, they got their house appraised, then Judy bought out Wendys stake minus her share of their retirement. It took years, but we worked everything out, says Gold. Thank God it wasnt more acrimonious. She could have said, The retirements in my name, so f you.
The cost of Janet Miller-Jenkinss custody battle with her ex-partner, Lisa, was more psychic than monetary, due to the dearth of rules and standards for gay divorce. Their separation became national news when, in 2003, three years after their civil union in Vermont, they broke up and Lisa moved to Virginia with their baby daughter, Isabella. As things soured, Lisa, the biological mother, began trying to keep Janet from seeing Isabella. Janet tried to get custody, and the case became a showdown between not only two ex-lovers, but between two states with very different ideologies.
When Lisa opened the case [in Virginia], it was right on the West Virginia line. It was really backwoods, one of the worst places to bring up any gay issue, says Janet. They said to Lisa, Youre the biological mother? Then shes no more than a friend, referring to me. We had been in court for nine months in Vermont; we had all sorts of evidence and orders, and they wouldnt even allow my legal team to show that information.
When I last spoke to Janet, shed visited Isabella the day beforethe first time shed seen her daughter in 2 1/2 years. My ex-partner insisted on being there, she says, so it was weird, but my daughter was fantastic. She remembered me. She just turned 5. Lisa had joined a conservative church and renounced her homosexuality when she moved to Virginia. According to Janet, Lisa seemed crazy at their most recent custody trial. She just talked in circles and loops. I didnt need any witnessesall I needed was her on the stand talking. Janet says that after Lisas performance, the Virginia court told her theyd enforce an order from Vermont awarding Janet visitation rights, and on April 30 the U.S. Supreme Court declined to hear the case, effectively upholding the Vermont ruling. It really seems to be coming to an end now, Janet says.
A state-sanctioned union doesnt guarantee a trouble-free separation and can sometimes complicate it. We never got a domestic partnership, and from what I understand from my lawyer friends, its actually a good thing we didnt, says Tim Kanaley, 37, a federal government employee in D.C. who broke up with his partner of nine years in January after finding out hed been having an affair. They had bought a house 50-50 and sold it the same way; otherwise their lives had stayed fairly separate. They had no kids, shared health benefits, or notable joint finances; their salaries had always been similiar. Unlike many other couples, they largely managed to go their separate ways in five months, a clean break with few entanglements, their belongings relatively neatly divided.
That is, except for one major asset. The only other thing we acquired while together as a couple is friendships, says Kanaley. After several years together, sorting out his friends from yours can feel like trying to remember whose boxer shorts are whose. Since the breakup, weve both approached our friend assets differently, Kanaley says. I went to my core friends, people who I knew from before we were together, and hes really reached out to the group of friends we have in common. It seems like hes establishing that group of friends as his, sort of taking them over.
I sometimes wonder which half of the couple whose ceremony I attended in D.C. would lay claim to me, a friend asset. (For the record, theyre still happily ever after.) Enmeshing assets with a partners isnt incidental to a relationshipin a sense, it is the relationship. Like tattooing their name on your skin, its a signal that youre in for the long haul. But not even tattoos are indelible. Says Janet: In the end, these divorces are nothing more than one party being kind of bitter and wanting more control.