Sept. 2, 2009 – One Wisconsin lawyer advises practitioners to remember that same-sex couples can break up just like opposite-sex couples, but that the laws are different.
In an article from the forthcoming September 2009 Wisconsin Journal of Family Law published by the State Bar Family Law Section, attorney Christopher Krimmer notes that same-sex couples may take advantage of the domestic partnership registry which bestows some rights previously reserved to opposite-sex couples.
But when a relationship ends, a same-sex couple is not correspondingly subject to rights and obligations under the state’s divorce statutes. “Rather, the separating partners are basically left to fend for themselves in a myriad of different laws,” Krimmer remarked.
“For example, if the parties own real estate together and cannot agree on how to divide the property, they will need to file a partition action,” Krimmer explained. “If one partner is withholding personal belongings from the other partner, the partner without the property will need to file a replevin action.”
“All of the remedies available to them under the law are all based on equitable and contract principles which ignored the true nature of their relationship,” he commented.
Partnership agreements
Krimmer suggests that same-sex couples consider using a partnership agreement to give themselves rights in the assets the couple acquired together.
“Gay or lesbian clients who seek the services of an attorney generally are in the place where they want to establish a legal relationship,” Krimmer said. “They are not looking for a document to identify what happens if they break up. Nonetheless, it is important that they be advised that the protections of the divorce statutes are not available to them so they may wish to consider a partnership agreement.”
An attorney must be sure to inform the clients that the term “partnership” in this context is purely contractual and similar to a business relationship, Krimmer cautioned. “The intimacy of their relationship is irrelevant with respect to the enforcement of the agreement,” he said. “In fact, the term ‘lover’ should not be contained in the document since it could make the entire agreement unenforceable.”
Contents of a partnership agreement
Krimmer recommends that the partnership agreement specify:
how property will be held by the partners
what obligations will be shared
any agreements regarding the disposition of property upon death
how the property will be distributed if the relationship is terminated
“For example, if one partner owned the residence prior to the relationship, he or she may receive one-half of the value of the property plus the amount of equity in the residence at the time the relationship was commenced,” Krimmer said.
Two provisions a lawyer should seriously consider incorporating into the partnership agreement are a severability clause and an arbitration clause, Krimmer wrote.
“The attorney is essentially fitting a square peg in a round hole by creating a contract based, in part, on an intimate relationship,” Krimmer said. “The attorney wants the protection of a severability clause in the event that one provision is found to be unenforceable because it relies too greatly on the intimate nature of the partners’ relationship.”
Likewise, Krimmer said that an arbitration clause “is recommended because it allows the partners to select an arbitrator who is knowledgeable about these contracts and who is comfortable working with gay and lesbian clients. A judge may not be so enlightened.”
Krimmer noted that the partners may want to name two or three arbitrators in the document to avoid any future dispute as to an appropriate arbitrator. They might also want to identify a process for selecting an arbitrator if all their named arbitrators are unavailable, he added.
Whether a same-sex couple takes advantage of the state’s new domestic partnership registry or not, Krimmer said that the partnership agreement is a good idea because the registry law does not address divisions of assets when the relationship ends.
Alex De Grand is the legal writer for the State Bar of Wisconsin.
This excerpt of Christopher Krimmer’s full article, entitled “Representing Gay and Lesbian Clients,” is published courtesy of the September 2009 State Bar Family Law Section’s Wisconsin Journal of Family Law. The State Bar offers its members the opportunity to network with other lawyers who share a common interest through its 26 sections. Section membership includes access to newsletters, email lists to facilitate information sharing, and other resources.
