GLBT Law 101: Divorce Without Divorce Law

Sean Lemieux
Attorney at Law

As most everyone knows, lesbian and gay couples here in the heartland cannot marry. But everyday same-sex couples form relationships that are virtually identical to marriage, just without the equal rights, responsibilities and protections given to marriage. Among the protections given to married couples, and denied to lesbian and gay couples, are the ones provided by divorce law. Basically, divorce law is designed to make sure that when a marriage ends, property is divided in a fair manner. In Indiana there is a presumption in divorce law that an equal division of marital property is fair. This applies even if the marital assets are titled in one person’s name only. So the stay at mom won’t be left without any money and the husband who spent years helping to build the wife’s business without technically being an employee or stockholder is protected.

Like married couples, lesbian and gay couples mingle their assets, buy houses and furniture and build businesses. Sometimes title to the house is in one name only but both pay for it. Often a couple runs a business together but only one is the legal owner. Occasionally, both parties have a credit card to use but the account, and ultimate liability, belongs to only one of them. If the relationship ends, protections for married couples don’t apply and the couple must try to accomplish divorce without divorce law. In these cases lawyers are left to throw around terms like partition, implied contract and unjust enrichment. These terms sound expensive because they are. It can be quite difficult for the partner who is not the legal owner of assets to establish a right to share in the assets without good records showing contribution. Loans from one partner to another may be treated as gifts without some evidence showing the parties intended that the loan be repaid. Simply put, taking these cases to court is time consuming, emotionally taxing and costly.

The good news is that a lot of the time and expense associated with same-sex divorces can be avoided or at least limited. While divorce law isn’t available, one popular divorce planning tool is: the prenuptial agreement. These agreements – often called domestic partnership agreements or cohabitation agreements for lesbian and gay couples – are basically contracts that set out how assets and liabilities will be divided if the relationship ends. Putting together a domestic partnership agreement definitely isn’t romantic, but it can ease the financial pain of a break-up if it ever happens. Break-ups are difficult enough without adding the burden of expensive lawsuits.

Domestic partnership agreements can be created at the beginning of the relationship or many years into it. They are especially important where the couple has a business, together or separately, where significant assets, like a home, are titled to only one partner or where one partner does not work outside the home. Domestic partnership agreements can be very specific or more general. At a minimum, the agreement should cover things like which assets are separate assets and which are to be considered joint, how household expenses are to be managed, how liabilities are handled and how property will be divided if the relationship ends. Couples should also consider including provisions for mediation if there is a disagreement over the agreement. Mediation can be less expensive than litigation. The couple should also consult attorneys who have experience drafting these agreements for lesbian and gay couples. These agreements are contracts and the law requires that contracts contain certain provisions to be enforceable. It’s also important to have the agreement properly drafted to avoid more expensive legal terms after a break-up, like fraud and undue influence. Consulting competent attorneys for drafting can help avoid much greater expense down the road.

Domestic partnership agreements certainly are not great testaments to romance. But they are the financially responsible choice. And as a practical matter, isn’t it better for you to decide what happens if your relationship ends rather than having a judge tell you?



Sean Lemieux is an attorney with offices in Indianapolis and Bloomington practicing throughout Indiana in the areas of adoption, estate planning, probate and GLBT family law. He can be contacted in Indianapolis at 317-985-5809, in Bloomington at 812-606-2974 or by email at sean@lemieuxlawoffices.com.

This article is for general information only and is not formal legal advice nor the formation of an attorney /client relationship. All situations are unique and you should consult a qualified attorney about your particular circumstances.