LGBT Families and Collaborative Law
The members of Collablaw.org are committed to working with all families to help them design and redesign their relationships. Kim Wright, an attorney member of Collablaw.org, is nationally involved in the movement to bring collaborative law to the LGBT community and is supported by the other lawyers on the team. See Symposium and NYC for examples of our involvement.
Collaborative Law is especially helpful to same-sex couples, given the legal inequalities and uncertainties they face:
a. Collaborative Law gives the clients the opportunity, with the assistance of professionals, to work toward the best solution for all involved. If clients go to court, their problems will be resolved by contract law, resulting in significant or even devastating financial and emotional costs for everyone.
b. Privacy is often a major concern for same-sex couples, particularly if their community, work environment or family environment is homophobic. Collaborative Law is very well suited to helping couples separate in a dignified, respectful and private manner which does not result in harsh, inequitable results for one or both of them.
c. Collaborative Law is holistic in nature. It takes care of the legal, financial and emotional needs of the parties. Traditional adversarial models of law do not fit same-sex separation cases. In the multi-disciplinary model, a team of lawyers, accountants, and mental health professionals work with both clients' best interests at heart and share information freely in a supportive environment.
d. A mental health coach can be available to help each client through the process.
e. Collaborative Law provides a safe structure where people can negotiate without the threat of court. They do not have to worry about the discrimination they may face in an adversarial process because of their sexual orientation.
f. Collaborative Law is client-centered instead of court-centered. It is far too easy for one partner in a same-sex relationship to “throw in the towel” and run to court for any number of actions, including partition of assets, tort actions, contract actions, or use of family law to the detriment of the other partner. The partner with the genetic or adoptive relationship with the children and the partner who holds the assets in his or her name will generally win in court, often to the detriment of the family unit that has been so carefully created and preserved. Where children are involved, and, in particular, in states which do not allow second-parent adoptions or recognize de facto parenting, there can be heartbreaking results if the court awards all rights to the “legal” parent and does not honor the child’s relationship with the co-parent.
g. The cornerstone of the collaborative process is that the lawyers sign a pledge to withdraw from the case if either of their clients decides to go to court. This gives the lawyers an incentive to leave adversarial habits behind. It encourages clients to stay in the process because litigating means starting over with new counsel. The parties have a vested interest to hopefully prevent the worst case outcome of litigation over LGBT issues where one or both partners face highly unfavorable results.
h. The settlement is shaped by the needs and desires of the couple, not the current status of the legislation and case law. A same-sex couple in the collaborative process is able to apply equitable distribution property principles even though these principles do not apply to them in their jurisdiction. For example, one partner may compensate the other for half of her retirement proceeds earned during the marriage, although she was not required by law to do so. The other partner may waive her claims to the first partner’s business, to which she had a right under business partnership laws, because her partner agreed to pay child support, which was not required by law.
i. Outside the collaborative process, an attorney representing a partner in a same-sex couple would assess whether the law benefits the client. If the attorney represents the partner with the strong legal position, he or she would promote litigation and push for filing a civil law suit as soon as possible. If the attorney represents the partner with the weak legal position, he or she would work hard to reach a settlement as soon as possible, try not to create waves, and hope that the other partner does not file a lawsuit. With Collaborative Law, this distinction can be erased. The parties can each be represented by counsel and litigation can be avoided. The status of the law can be ignored and the parties can agree to what is equitable. Mental health professionals are very helpful in achieving this outcome, because the partner who knows that the law is in his or her favor will usually be tempted to terminate the Collaborative Law process and litigate, whereas the partner who has no legal rights may be desperate. This discrepancy can create extreme emotional barriers to the process. The mental health professionals can assist in keeping the partners in check and on track. Collaborative Law can give same-sex couples the emotional support they need, so that they can focus on reaching an equitable agreement. *
*Much of the preceding was taken from a paper written by Mariette Geldenhuys, Kim Surratt, and Cindy Zatzman, presented at the 2005 IACP conference:
COLLABORATIVE LAW FOR LESBIAN, GAY, BISEXUAL AND TRANSGENDER CLIENTS AND THEIR FAMILIES
