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Contract lawyers see opportunities, limits in same-sex cases

By: Jack Zemlicka, [email protected]//February 20, 2012//

Contract lawyers see opportunities, limits in same-sex cases

By: Jack Zemlicka, [email protected]//February 20, 2012//

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Dissolving same-sex relationships offer business and transactional attorneys a relatively untapped, unexpected market.

But lawyers who practice outside the family law arena may be ill equipped to navigate the emotional elements of relationship-based cases, said general practice attorney Patrick Roney, of Roney & Kanupp LLC, Milwaukee.

In Wisconsin, which does not recognize gay marriage, civil lawsuits to recover property often are the only option for same-sex couples when relationships end in dispute. That takes relationship dissolution away from family law practitioners and opens the door for lawyers with a background in contract law.

While most family lawyers have a working knowledge of contractual law, Roney said, it’s less common for business lawyers to be well-versed in how to deal with the personal intricacies of cases tied to relationships.

“I would be hesitant,” he said, “to take on a case due to the romantic side of dissolution.”

Roney has dealt with such cases before, he said, and one in particular was “a nightmare” because it ended up being more about the relationship than the assets.

In that instance, he represented a man who was fighting his fiancée for ownership of a couch in small claims court. Roney wasn’t prepared, he said, for the battles.

In that case and a few others like it he’s handled, Roney said, there was much more “hand holding” involved.

Madison family attorney Chris Krimmer, who has worked on several same-sex separations, acknowledged that while such cases are rooted in civil claims, the personal ties involved require more than just legal knowledge.

“When two people who shared intimacy or a child are emotionally distraught about a breakup,” he said, “those are things you want a family lawyer to address and not a real estate attorney.”

While the emotional side of a same-sex relationship isn’t considered in court, Krimmer said, there are marital aspects such as designated power of attorney or distribution of assets that can be established as evidence in a case.

“In that respect,” he said, “it is very much like a marriage because you are using those factors to support the relationship as a joint enterprise.”

But divorce lawyers don’t litigate in front of juries, said attorney Teresa Kobelt, and that is an element that can come into play when cases go outside family court.

Kobelt, of Haley Palmersheim SC, Madison, is representing one side of an engaged couple that started a business and then ended the personal relationship.

“Now they are trying to separate out the business aspect of it,” Kobelt said. “The whole thing is handled as a partnership, and I can’t imagine it would be all that different for same-sex couples.”

Kobelt said she would be interested in taking on a same-sex case but doubts any such clients would approach her directly.

“I’d be surprised if people found me on their own,” she said, “because it’s really a family relationship, and that kind of lawyer is where people would probably start.”

That disconnect likely is limiting the number of nonfamily law practitioners who take on same-sex cases, Roney said.

“There is definitely a market there,” he said, “but I think there are barriers to getting those kinds of cases for attorneys that don’t do family law.”

There may be limited time for tapping into the market, depending on the outcome of a California-based lawsuit over the constitutionality of same-sex marriages.

Perry v. Brown, filed in 2009 by two same-sex couples, challenges the constitutionality of a state proposition that outlawed gay marriage.

The Ninth Circuit Court of Appeals on Feb. 13 ruled the California ban unconstitutional, and the case is probably headed toward the U.S. Supreme Court.

If upheld by the U.S. Supreme Court, the decision would supersede Wisconsin’s ban on gay marriage and give family attorneys the ability to rely on the family law code when working through same-sex separations, Krimmer said.

Until then, Kobelt said, she will consider tapping into the niche market because it’s an option to expand business.

“It’s not terribly romantic,” she said, “but that’s the reality.”

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