Gay couples here given 'marital-like' divorce rights

E-mail this article Print this article Search archive Most e-mailed articles

Related stories Marriage offers host of legal entitlements

Lynn Gormley and Julia Robertson did many things married couples do. They deposited paychecks in a joint bank account, borrowed money and bought a home together.

So when the couple split six years ago, they should have been treated much like a married couple divorcing, even though they're both women, a state Court of Appeals decided last month.

The court said they were in a "marital-like" relationship, which meant the courts could decide a fair settlement of their assets.

Although many other states treat cohabiting unmarried couples as contractual partners, only Washington treats them as "marital-like," affording them more rights when they break up, said professor Julie Shapiro of the Seattle University School of Law.

The ruling in the Gormley-Robertson case cemented what many Washington family lawyers — especially in King County — have known for years: Gay couples may not be able to get married, but they certainly can get divorced, or something very much like it.

In fact, for the past decade or so, while gay activists have been fighting for the right to marry, attorneys have helped hundreds, if not thousands, of same-sex couples sever their relationships just as if they were divorcing.

They've split houses and investments, made child-custody arrangements and occasionally gone to trial.

Because Washington case law has laid out parameters for same-sex marital-like relationships and their dissolution, couples going to Portland or San Francisco to get married as a political statement should pause, said Elaine DuCharme, a Seattle attorney.

One partner, for instance, could point to the Multnomah County marriage license as a sign of a marital-like relationship and then demand that a court here assign an equitable settlement if the couple splits.

"Some people will say they want to tie the knot as a symbol, but they may not want to give up their Microsoft shares" if the relationship ends, said DuCharme, who estimates she's helped 950 clients dissolve their same-sex partnerships.

"This is definitely a growing area," said Barbara Wechsler, a Seattle attorney who guesses she's handled 200 to 300 gay clients splitting from their partners.

"It's become a niche," DuCharme said.

Attorneys noted they have no reason to believe gay couples break up more often than straight couples.

These dissolutions are most common in King County, though DuCharme also has had clients in Snohomish, Pierce, Island, Kitsap and Spokane counties.

Until recently, a gay person in a committed, cohabiting relationship couldn't always rely on the legal system to protect her or him against an unscrupulous partner. Often one partner would invest time and money in a home, for instance, but get nothing in return once the couple split if the property was in the other partner's name, several attorneys said.

The situation for cohabiting heterosexual couples was much the same.

Then in 1995, a Washington court defined marital-like relationships, entitling both parties to protections similar to those granted a married couple going through a divorce. For this type of legal relationship, the couple would have to "cohabit and commingle," including sharing a bank account, car loan, mortgage or health-insurance policy, DuCharme said.

Since 1995, both straight and gay unmarried, cohabiting couples going through breakups have appealed to courts for protection.

"For unmarried couples living in a marital-like relationship, there is the presumption that property acquired during the relationship would be (shared) property, so the court can distribute property on a just and equitable basis," said professor James Hardisty, who teaches family law at the University of Washington School of Law.

In the recent Gormley-Robertson ruling, that meant Gormley, a nurse, was entitled to more than $32,000 from Robertson, a physician.

Although the appeals court said the legal system could act to distribute the property equitably, it also said the issue of gay-marriage rights is up to the Legislature.

Hardisty and DuCharme noted that the settlements are the result of court rulings, not statutes.

As a result, DuCharme said, her clients can't get reimbursed by the other party for attorney fees and have no right to alimony or property the other party acquired separately, as they would in an actual divorce.

And, in the case of child custody, unless a partner is either an adoptive or biological parent, he or she has no rights.

The law is being challenged in a case before a state Court of Appeals, wherein a woman who is neither the adoptive nor biological parent is seeking visitation rights.

Because the marital-like law is still somewhat unclear without an actual statute, and thus, fairly volatile, most couples settle out of court, Wechsler and DuCharme said.

As such, said Patricia Novotny of the Northwest Women's Law Center, unmarried couples — same sex or not — still don't have the same protections as their married counterparts.

"I couldn't be more clear about it: This isn't a divorce because it isn't a marriage."

J. Patrick Coolican: 206-464-3315 or jcoolican@seattletimes.com