Same-Sex Relationships

A Legal Framework for Dispute Resolution

A growing number of states have established laws for same- sex
marriages or marriage-like civil unions and domestic partnerships,
with accompany ing “divorce” laws for the dissolution of such
relationships. Same-sex couples in other states, meanwhile,
must disentangle their relationships without reference to
meaningful statutes.

The absence of an applicable legal framework places same-
sex couples (and opposite-sex relationships between
unmarried persons) in an ambig uous situation. For
example, these couples are denied alimony or spousal
support. They may have limited entitlement to share in
property acquired during the relationship. And for couples
with children, a partner who is neither a biological nor
adoptive parent may have no rights of visitation.

Moreover, absent a legal framework, same-sex relationships may be treated as failed business partnerships, with assets and liabilities allocated under business partnership law. They might also be contested according to contract law — a messy and expensive proposition (commonly known as a “liar’s contest” when the contracts are predominantly oral in nature).

Mediation for Same-Sex Couples

Mediation can help same-sex couples navigate conflicts exactly as for opposite-sex couples. Where same-sex legislation exists, statutes provide a legal framework for reaching a resolution. In states with no such legislation, the mediator may instead suggest that the couple adopt either the state’s body of law applicable to opposite-sex couples or adopt another state’s civil union or domestic partnership laws.

Reference to a legal framework during the mediation process can provide you with a template for settlement. A legal framework can also serve an adjudicatory function when it’s accepted as legitimate by both parties. However, a legal framework is not always necessary or even facilitative. That’s because relational conflicts usually center on issues of equity and emotions, neither of which are effectively addressed reference to by statutes and case law.

Issues of equity and emotions are the space in which our mediators work — the hinterland between legal argument and couples counseling. We succeed by creating an environment that encourages an open and constructive exchange, and then we lead the exchange towards settlement. In this way, we guide our clients through a process that is inherently more pragmatic and practical than litigation.

If you are in a same-sex relationship and seek either “marital” mediation to strengthen your union or “divorce” mediation to end it gracefully and efficiently, please contact one of our mediators for a confidential consultation.

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