The Legal Reality of GLBT Relationships

How do you define a “family”? Is it a combination of marriage and genetics? Is it a group of people who love and care for each other? The reality of our society is that “family” is indefinable. However, while we as a society identify “family” in many ways, the pertinent question for the GLBT community is, “What legally constitutes a family?”

It is well known that Minnesota does not recognize marriage for same-sex couples, nor does the state offer civil unions or domestic partnership benefits. However, many GLBT couples don’t know that in the eyes of the law, they are actually considered strangers to each other.

Although gay and lesbian persons form committed relationships, purchase property, and raise children together, when these couples end their relationships, the law simply turns its back. For instance, the law is unimpressed that you gave up a career to be a stay-at-home parent while your partner spent years acquiring thousands of dollars in a 401K for a retirement meant to be shared together. It takes the human attribute of empathy to recognize when two people have formed an intimate relationship and to understand the intent of those persons in purchasing property and raising children together. The law is rationale, not empathetic.

Consequently, attorneys are taking advantage of the law’s rationality and using its logic to procure legal protections for GLBT couples. The most frequently used model is the “Domestic Partnership Agreement” or DPA. These agreements are essentially contracts between the parties, similar to a pre-nuptial agreement. Thus, these agreements can create and clarify property rights and financial responsibilities between the parties at any time during the relationship.

Agreements may have a useful prophylactic effect on the one hand, and in the event of a separation, the parties are able to utilize their agreed-upon mechanism for dispute resolution, or seek enforcement of the agreement as a contract. Thus, the parties can determine what will happen should their partnership dissolve, before the relationship actually ends.

Absent an express agreement between the parties, a court must infer the intent of the parties and attempt to produce an equitable outcome for both parties. However, without an agreement, the logic of the law will likely only provide an equitable outcome for the titleholder of the property, while limiting the financial responsibility of one partner to another as the law rarely recognizes a financial responsibility between strangers absent a contract.

At Ballou Law Partners, we are taking the logic of the law a step further. Minnesota divorce laws are automatically invoked when a married-heterosexual couple dissolves their marriage. We help GLBT couples to contract, through a DPA, for the Minnesota divorce laws to apply to their relationship should it dissolve. Thus, using these contracts, we are attempting to give GLBT couples the same access to the rights reserved in statute for heterosexual couples. We are excited to be at the forefront of an emerging area of law and to be working toward positive change in the GLBT community. You take care of defining your family and we’ll help you protect it.