One of the many unjust results of a state legal system that refuses to recognize and validate a same-sex marriage or civil union is the absence of a binding structure and system for dissolving a fractured same-sex couple. LGBT couples typically have many, if not all, of the same legal issues to confront. How is custody of their children shared? How is their shared property divided? Who must help to support whom when the union ends? As a practicing family lawyer who has been married for 36 years, I have often reflected on how legally imposed rules and structure can support and preserve a marriage. And those of us active in the legal world of family law are constantly reminded that "the law" significantly lags behind the realities of modern human society. When our college-age son came out as a proud gay man to his family, I became keenly interested in exploring ways a same-sex couple can strengthen their union by preparing for the worst: a dissolved union.
Because my state, Texas, like so many others, obdurately refuses to validate and regulate same-sex marriage or civil unions and their occasional terminations, I recommend that LGBT couples reach as many binding agreements as possible when they embark on their lives together. Property ownership and financial obligations can be made binding by a cohabitation contract, much like the premarital and post-marital agreements so many heterosexual couples employ in this age. Parents may be given equal rights and duties to their children, before a sad break-up, through adoption and/or parenting conservatorship agreements. Estate planning may be conducted. Progressive attorneys throughout the country are assisting the LGBT community to "work around" the backward state of the law in their communities, while engaging in the fight to systemically address the inequity. Meanwhile, how does the legal community assist same-sex couples when their relationship ruptures?
The emergence worldwide of the concept of collaborative family law offers an effective, if not ideal, process to both legally and contractually codify an intact family, thereby lessening the uncertainty of a possible split and creating legal equality in the relationship. And if the couple separates, particularly in a state that refuses to recognize same-sex marriage or civil unions, the collaborative law model is invaluable in offering structure and guidance to divorcing couples.
The collaborative law model emerged in the early '90s as an alternative to the litigation court process of divorce. Since that time, the movement has gone viral around the globe. At the core of the process is the contractual agreement, signed at the start of the dissolution, that the couple will not appear in court to seek court intervention. And, if one or the other wishes to do so, both parties must hire new lawyers, from different law firms, before taking their case to court. The beauty of this tenet is that all participants, legal counsel included, have financial incentive to collaborate and reach acceptable resolutions!
Interest-based negotiation is another fundamental principal of the collaborative model. Traditional litigation and settlement is based on positional bargaining. In a collaborative process we help the couple focus early on their true interests. For example, a litigating couple may argue about which person keeps the home. In this scenario, one person wins and the other loses. Maybe the true interest behind the position of wanting the home is the emotional need for the security of the nest and the fear of transition. A host of options may be developed to address such an interest, perhaps a transition time, financial help in buying another home, or trading investments for the home.
As the collaborative movement has grown worldwide, different approaches have developed. In my collaborative community we add two members to the team: a mental health professional and a financial professional. Both professionals are neutral and participate to help the couple and their lawyers collaborate at their highest level of reason and effectiveness. The mental health professional helps everyone navigate the waters of loss, grief, and anger, emotions that usually permeate financial and parental decisions. The neutral financial professional participates in helping to gather and interpret financial information and fashion creative solutions.
From the straightforward to the complex family law issue, the steps of a collaborative process are simple and highly successful, if taken, in reaching agreements. First, the couple identifies their true goals and interests. Second, all the relevant information needed to make a decision is gathered and shared. Third, options for settlement are generated. It is important not to prejudge options, as doing so limits the creativity of the group. Finally, options are evaluated until an agreement is reached by the participants. The professional team of attorneys and mental health and financial professionals guides the couple throughout all the steps without imposing their personal judgments on the options generated. Unlike litigation, the words "I'm not going to let my client agree to that" are eliminated from the discussion. Same-sex couples are perhaps better suited to the collaborative law model than their heterosexual friends, as same-sex couples tend to share power better, fight more fairly, and remain more upbeat in the face of conflict and adversity.
I have heard the joke that of course same-sex couples should be allowed to marry: why should heterosexuals be the only people inflicted with divorce lawyers?! I say that through the collaborative family law model, same-sex couples have the chance to model for heterosexuals the most positive, productive, and practical way of planning for facing family law issues.