By Will Doig
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 haven't planned ahead for a potential breakup. 'I'm 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. They're mad, they're vengeful'it's 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 then'4-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. 'It's 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. 'I've 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. It's 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 it's a 10-year marriage, that might mean they only have five years of spousal support to pay.' It's just as important if you're 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. We'd been together since we were 22 and 23 respectively, and we started with nothing, so whatever we had, we'd gotten together.' The house was in both their names, Wendy held the retirement fund, Gold was on Wendy's 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. There's 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 weren't married. Instead, they got their house appraised, then Judy bought out Wendy's stake minus her share of their retirement. 'It took years, but we worked everything out,' says Gold. 'Thank God it wasn't more acrimonious. She could have said, 'The retirement's in my name, so f you.' '