Breaking Up is Hard to Do

By | August 1, 2011

Break-Up FAQ

1. How do you go about dividing up items you’ve purchased together?

In the absence of a comprehensive set of legal rights and obligations, a same-sex couple may formalize their relationship by entering into a contractual arrangement called either a cohabitation agreement or a domestic partnership agreement. This agreement may cover a number of different subjects.  It may address, for example, the pooling of income during the relationship; the division of responsibilities for expenses; and/or the division of property, support payments, and method of dispute resolution upon the couple’s separation.

No reported decision in Pennsylvania specifically addresses the enforceability of a domestic partnership agreement between same-sex partners. In Knauer v. Knauer, however, the Pennsylvania Superior Court held that an agreement between unmarried partners is enforceable so long as it is “not predominantly based on sexual consideration.”  Despite its potential unenforceability, a domestic partnership agreement evidences the familial nature of the relationship between the partners and provides evidence of the parties’ intent regarding the sharing and titling of property.   For instance, in an unreported decision citing Knauer, the Court of Common Pleas for Northampton County enforced a property settlement agreement between same-sex partners and, in doing so, held that the agreement was not against public policy.

2. Who gets to keep the pet?  Do either of us have visitation rights?

Lately, family law judges have recognized that pets are not just like furniture. In a heterosexual divorce case, the judge will listen to the parties and then decide which one is better suited to care for the pet or has more of an attachment or history, and will generally grant ownership to that individual. However, since same-sex couples do not go through divorce proceedings as when dissolving the relationship, they typically won’t have a legal decree of ownership. The decision of ownership will have to be made by the individuals at the time of separation, perhaps in mediation, or provide for such a situation in a domestic partnership agreement detailing the ownership and visitation rights at the time of purchase of the pet.

3. Who gets to keep the security deposit on our apartment?

Security deposits are usually paid back to the individual whose name was on the check for the deposit. If, as usually happens, both of you contributed to the deposit but only one person wrote the check, the person whose name was not on the check will have to rely on the honesty of the check writer to give back the portion that doesn’t belong to him or her. This can be avoided by contracting for this scenario in advance, when the deposit is paid.  Otherwise, the matter will have to be taken to small claims court.

4. What are the rights to the non-biological parent after a separation if the child was conceived during the relationship? Between men as well as women.

For same-sex couples, there are three general paths to having children: foster parenting, adoption, and assisted reproductive technology (ART) (i.e., intrauterine insemination and/or in vitro fertilization for lesbian couples and surrogacy for gay couples). Same-sex couples might also pursue a combination of these paths to establish a family.

In the absence of a second-parent adoption or a shared-parenting agreement, the court held in T.B. v. L.R.M. that the former same-sex partner of a child’s biological mother had standing to seek custody or visitation using the in loco parentis doctrine. Whether custody or visitation will be awarded depends on the child’s best interest.  To obtain primary custody, the partner must overcome the legal parent’s prima facie right to custody and prove by clear and convincing evidence that the award of custody is in the best interest of the child.

In loco parentis status not only affords a non-legal parent standing to pursue custody or visitation of a former same-sex partner’s child, but also comes with potential child support obligations. In L.S.K. v. H.A.N., the court held that the legal parent’s former partner was equitably estopped from asserting that she had no obligation to support their five children when she had taken on a parental role, cared for the children, and sought custody of them following the breakup of the relationship.

 

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