It’s important for gay couples to have domestic partnership agreement (also known as joint property agreements). These agreements help clarify who owns what and what would happen if you were to break up. The most common piece of property warranting a domestic partnership agreement is a house.
The agreements are particularly important if domestic partners have unequal ownership in property. For example, one guy puts $50,000 down on the house and the other guy puts $0. The guy who put down $50,000 will want a domestic partnership agreement to show that he has more ownership in the house than the guy who put down nothing. For married couples, a judge will look at these things as part of the divorce process. But same-sex couples can’t get divorced, so they need to arrange these things beforehand through contracts.
Other than down payments, make sure you say who paid for what in closing costs, improvements, and repairs. The agreement can then reimburse the party who paid for these things. A common provision is that if one person pays more than 50% of the cost of an improvement, then that person gets credit for the cost of the improvement, but only if both people agreed to make the improvement. You can’t buy a swimming pool against your partner’s wishes and then get credit for it when you break up.
Specify how to handle debt. Let’s say one partner had great credit, so she put in about $40,000 on her credit card for furniture. You could add a provision that says that proceeds of the sale of a house or furniture pays off that credit card debt before payment to couples themselves.
These kind of agreement are upheld in court. And they streamline gay divorce. The contract will be like an instruction manual for a judge to easily divide property. And you get to avoid talking about silly topics in court like who didn’t take out the garbage or clean up after the dogs or whatever else.
The Florida domestic violence statute, found at 71.248, applies to family or household members. The law defines a family or household member as:
Spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.
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People supporting gay marriage often cite many benefits, but believe it or not, the best benefit of gay marriage would be the right to get divorced.
With divorce, society has created this whole mechanism where you can go to court and say, ”Judge, we don’t like each other anymore, and we neeed help. We’ve been together 20 years, we’ve got all this stuff. Help us dissolve our relationship and divide up assets and debt.”
Just like straight couples, most gay couples don’t get prenups or domestic partnership agreements. They say, “Oh, it’ll last forever and we don’t need anything.” But then things go bad, feelings are hurt, emotions are involved, and people get vindictive. They aren’t nice.
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The best way for family law attorneys to help gay people who come to them for help is to ask the right questions. LGBT family law in Florida and elsewhere can be very complicated, and if you don’t ask the right questions in the initial consultation, you may not pick up on certain issues.
Here are some of the things I ask about:
Did They Get Married?
Is the couple already married? Was the marriage in another jurisdiction? If so, educate them that their marriage is invalid. No benefits whatsoever. Make sure they understand that the only protection they have is through legal documents.
They might call themselves husbands or wives or they may have had a commitment ceremony. Sometimes couples are shocked to learn that a name-change and marriage from another jurisdiction do nothing.
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Gay marriage in Florida is prohibited, so same-sex couples in Florida that have been together a few years often wonder, “What is our next step?”
Maybe you keep calling yourselves boyfriends or girlfriends. Or maybe you say partners. Or perhaps even you have a “commitment ceremony.”
But what do you do if what you really want is to get married?
Previous Advice: Don’t Do It
I usually advise couples against resorting to out-of-state gay marriage. While the emotional benefit is real, in Florida the legal benefits are not. It can also create a false sense of security, leading the couple to not take advantage of other legal protections because they think their out-of-state marriage decree will provide them. It will not.
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