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Mediation: When The Alternative Is Unacceptable

Recently, I was asked to mediate the dissolution of a long term committed relationship of a same sex couple. One party a successful business person who acquired significant holdings during the course of the parties committed relationship, the other, by agreement, managed the couples household and finances. Once having made the mutual decision to live separate and apart each consulted an attorney of their own choosing, each told that, as they were unmarried, division of acquired assets would be by property and contract law. Both parties came to the same conclusion that dissolution of their relationship by strict property and contract law would effectively deny the non-titled party distribution of any of the assets acquired during the relationship, most of which were titled in the monied partners name. Although distribution by strict property and contract law would significantly favor the titled holder, both agreed that such distribution would, in consideration of their continued mutual respect and recognition of their long term relationship, be wholly unacceptable. To their credit they sought an alternative method by which to resolve their differences; that alternative was mediation.

It is not the intent of this article to debate the issue of marriage. What marriage is, should be, and who may be joined in civil and holy matrimony, is left to greater minds. This article is about the inequity of law that committed – unmarried couples suffer when ending their relationships, the lack of a structured process by which they may resolve the issues confronted when doing so and the legal void that mediation effectively fills.

Where the Domestic Relations Law of New York State (DRL) provides for the “equitable distribution” of “marital assets” to “married” couples, it affords no protection to unmarried “couples” who have lived together in a committed relationship, acquired property and belongings, as is usual and customary for “couples” to do during the course of their relationship. With the exception of extending health insurance benefits to qualified domestic partners New York does not legally recognize common law marriages (originating in state), domestic partners, committed relationships or significant others. Those who are ineligible to marry under the laws of New York State, specifically same sex couples, are denied the protection of the DRL and must resolve their dissolution issues by property and contract law…an inadequate standard that fosters inequity.

A distinction must be made between heterosexual couples who may legally marry – and do not – and same sex couples who are committed and want to marry – but may not. Heterosexual couples who live in a committed relationship and, for reasons known only to them, fail to marry, who would otherwise benefit from the provisions of the DRL, consciously make that decision and remain unmarried voluntarily. Same sex couples who live in a committed relationship and want to marry, but may not, have no choice but to live together unprotected by the provisions of DRL and subject to distribution of acquired assets by property and contract law.

Few would argue that the DRL is not a well defined authoritative body of law that is, in most instances, rational, comprehensive, concise and sufficiently detailed (with the glaring exception of spousal maintenance) to define the individual and collective duties and obligations of parties dissolving their marriage. It provides an effective framework for fairly dividing assets acquired during the course of the marriage, thereby fostering resolution by application. Unfortunately, for reasons unclear to me, it does not, to any degree, apply to unmarried committed couples. One need not go too far back in history to remember a time when children born out of wedlock were branded “bastard s” and denied the same rights as children born to married parents. Fortunately, we have moved beyond malicious labeling and addressed the needs of innocent children through the Child Support Standards Act which affords support to children regardless of the marital status of their parents. One would hope that that is so because it would be grossly unfair to deny the children support because of their parents voluntary decision to remain unmarried; a circumstance outside of the control of the children. The analogy being that innocent parties should not be punished or denied protection of the law for circumstances beyond their control – particularly in family matters.

Same sex couples do not have the opportunity, as do heterosexual couples do, to marry and therefore protect acquired assets by later distribution in accordance with the DRL. If the DRL’s non-application to unmarried couples is intended to encourage marriage, by equitably distributing acquired assets upon dissolution of the relationship, then marriage must be redefined to be gender neutral to afford equal protection under the law – to all.

The Domestic Relations Law, a law that affects home and family, must adapt and be responsive to our social evolution. It must take into consideration our changing mores and progressive culturalism. To purposefully deny same sex couples, who have lived in a committed relationship, the protection of the DRL is at best, short sighted and at worst discriminatory. However, marriage need not be redefined to afford same-sex couples the protection of the DRL.

Many will argue that affording same sex couples protection under the DRL is an assault on traditional marriage. I disagree. To address the issue of equitable distribution of assets acquired during a committed relationship (a secular consideration) we need not address the issue of “gay marriages” (an ecclesiastical one), nor redefine what a “marriage” is or should be. Clearly, these are two distinct unrelated issues. In fact, addressing the issue of “gay marriage”, in this political climate, would be a fools errand. Marriage, throughout history, has been defined, and accepted, as a union between man and woman. Let marriage stand as it historically has until the political climate is more favorable to reasoned debate. “Gay marriage” is a battle better fought at another time. However, denying same sex couples the protection afforded heterosexual couples in the distribution of acquired assets is a fundamental injustice a mere step removed from the Jim Crow laws.

Extending the equitable distribution provisions of the DRL to same sex couples would require little effort; no new law need be written; no redefinition of marriage required. Aside from politics, religion and homophobia, the greatest obstacle would be to determine by which means the couples commitment would be legalized. Without a defined procedure to legalize their commitment the floodgates of litigation concerning equitable distribution of “assets” would be open to “friends” who have lived together, parted “roommates” and others who, once having separated, see a boon in attaching the assets of the other party. An unacceptable circumstance. Putting aside religious and civil ceremony (application of either would run afoul of traditionalists who would argue that such an act would devalue, diminish and dilute marriage) the simplest remedy would be to extend the full panoply of equitable distribution provisions of the DRL afforded heterosexual couples to same sex couples – by contract. Recognize, by amendment to the DRL, the right of parties to enter into contract to subject themselves to the equitable distribution provisions of the DRL. By doing so you extend protection to a class of people historically discriminated against and circumvent the issue of redefining marriage. Here, separate, but equal, would be an acceptable alternative to no protection at all. Regardless of method, the equitable distribution provisions of the DRL should be extended, by whatever means necessary, to those couples that are denied the institution of marriage by current statute or religious edict.

As the present state of the law provides no means by which to equitably divide the acquired assets of a same sex couple, resolving the issues attendant to dissolution of a long term committed same sex relationship is a difficult task made more difficult by the lack of enforceable guidelines by which to do it. Being presented with the opportunity to mediate the dissolution of the parties long term committed relationship, and dissolution by contract and property law being unacceptable, it soon became apparent that the resolution structure by which the parties would resolve their issues would be none other than voluntary application of the principals of the DRL.

To me, divorce mediation is simply resolution by reasoned negotiation (negotiating skills being an art) in a structured format defined by the DRL (a practical framework of defined objectives). Whether heterosexual or homosexual, legally married or merely committed, the issues presented by a couple dissolving their relationship are typically similar regardless of gender or ceremony. The problem presented by mediating a same sex dissolution is that the structured format is not enforceable and its unenforceability a real threat lingering in the background poisoning the negotiating pool. In this instance, the problem was not in the application of the equitable distribution provisions of the DRL (application of which being a viable alternative as demonstrated by the couples choice to mediate), nor gender consideration, but rather in keeping the parties focused on what brought them to mediation; the need to resolve their issues fairly.

The hard reality is that the DRL does not apply to same sex couples. Therefore, the titled party has no duty or obligation to resolve the parties issues according to the equitable distribution provisions of the DRL and should that party choose to – he or she could, with the support of the law (contract & property), pick up his or her marbles and go home with the acquired fruits of the relationship. The hard reality is that the non-titled party has no right or claim to property acquired during the course of the relationship that he or she did not in some way contribute pr bear title to, sadly leaving that party out in the proverbial cold with nothing to show for years of effort and consideration afforded the other party. Both legal realities resulting in each party’s legal position (one arguing in-law, the other in-equity) being diametrically opposed to the others.

As much as I would like to take credit for having successfully resolved the party’s dissolution issues, the credit rightfully goes to the parties themselves. To the titled party’s understanding of the others concerns, acknowledgment of the other’s contributions during the course of the relationship, and the titled party’s overwhelming generosity, kind consideration and proven humanity. To the non-titled party for recognition of the other’s generosity, consideration and acknowledgment of the non-titled parties contribution to the relationship.

Reflecting upon this experience I am richer for having met this couple. Personally, I have come away with a renewed acceptance of our innate sense of fairness and desire to do good. I have reaffirmed my belief that regardless of race, color, creed or sexual preference we are not so different; each capable of doing good, each subject to the exigencies of life. Professionally, I am more convinced than ever that there is a need to aggressively pursue the institutionalization of mediation as a dispute resolution alternative to the traditional dispute resolution model.


Gene D. Barr

I came to being an attorney late in life. I was a commercial contractor for 35 years and at age 38 had no formal education. After suffering several knee and shoulder surgeries I was told to find another occupation or suffer the consequences later in life; taking that warning seriously,… MORE >

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