Clean (heart)break

Listen to this article

When gay or lesbian partners break up, they’re on their own in the eyes of the law.

With no divorce law offering protection, it’s often difficult to come up with an equitable split of assets. That’s where mediation can come into play.

“So much of the law that is being advanced today in gay and lesbian civil rights is creating and establishing relationships,” said Madison attorney Christopher Krimmer, of Balisle & Roberson.

“But we lack any protections when relationships end. What we fail to address is: Most of the protections of a marriage don’t apply until the marriage ends.”

One of Krimmer’s former clients, Laura Mitchell, said that when her relationship of 3 ½ years ended, she found mediation helped her feel like she had solid footing for claiming what was hers.

“I don’t know how else I would have had equal representation in this situation,” she said. “It just gave me an outlet for feeling like I had some representation and did have an opportunity to be treated equally. I felt like I had some rights.”

Retired Dane County Circuit Judge Angela Bartell, who now runs Bartell Dispute Services in Middleton with her husband Jeff, said mediation helps people work around the gaps in the law.

When someone turns to Krimmer, who has been practicing for 13 years, or Bartell for mediation, the first thing made clear is if the client wants a mediator, that client is not getting an advocate. Rather, the mediator will do everything possible to make sure both sides reach an acceptable resolution.

“Equitable is in the eyes of the beholder,” Bartell said. “I encourage them to be informal, to prioritize the things they want or feel they need and to compromise on the items they both want.”

In Mitchell’s case, the former partners first tried to work it out on their own. When that failed, they went to mediation, during which time they each were allowed to make their case to the mediator, in their case a judge. Each partner stated why she felt she should get what she was asking for. The judge then decided how the assets should be divided.

“[The judge] got the history and the background of why we felt the way we did about the assets,” Mitchell said.

When it comes to splitting up assets, Bartell said that in her experience, the parties usually are willing to work together when it reaches the elected mediation stage. After all, they’re paying for mediation, so they’re motivated to make it work out, even if there are tough decisions to be made.

“Everybody has their own thing that’s just more important than anything else,” Bartell said.

“We just try to get them past the impasses in their negotiation. I warn them it will not be perfect. If each side is equally unhappy rather than one side won and one side lost, we’ve probably done a successful mediation.”

While mediation certainly isn’t a simple process, it has some big advantages, including confidentiality, for gay and lesbian couples. But the mediator needs to handle the situation in a respectful manner.

“A gay and lesbian couple can be very sensitive to the mediator’s understanding of their situation,” Krimmer said. “So you have to make sure they know it’s a safe, secure environment. For example, if you as the mediator refer to the other person as a ‘friend,’ that’s off-putting to some people.

“If they use the term significant other, you need to adopt that term. If they use the term partner, then you need to use that term. You don’t have to be a gay and lesbian mediator to mediate gay and lesbian issues, but you do have to have an understanding of their issues.”

Key Issues:

When performing mediation for a gay or lesbian breakup, here are two unique areas to watch out for, according to Madison attorney Christopher Krimmer:

Unequal assets

Say one partner buys a house and puts down $20,000. Then, a few years later, a relationship begins and the other partner moves in. If they break up, Madison attorney Christopher Krimmer said, the partner who did not buy the house still would be entitled to 50 percent of the down payment under an equal split. With the concept of marital assets not applying, it can get complicated.

Joint efforts

If both partners work and contribute to the accumulation of assets, then it’s simpler to determine an equitable split. But what if one stays home to watch a child while the other works? That’s when a mediator needs to help the parties determine how the effort of raising a child or other non-paid work contributed to the accumulation of assets.

Casey Laughman can be reached at [email protected].