REACHING A PROPERTY AGREEMENT: THE LGBT DIVORCE

REACHING A PROPERTY AGREEMENT: THE LGBT DIVORCE
by Roger V. McCaffrey-Boss
Copyright by gay Chicago Magazine and Roger V. McCaffrey-Boss
May 7-13, 2009
http://www.gaychicagomagazine.com/advice/legallyspeaking.shtml


How do LGBT couples, starting a new relationship, decide to own and acquire jointly owned property such as a car, house, furniture, savings accounts etc. and make a fair split of their assets in the event of the breakup of their relationship?
If you were a heterosexual married couple, you would be protected by the matrimonial laws enacted to allow a judge to divide your property if you were unable to agree on how your possessions should be split. For the LGBT couple, unfortunately, the law (in Illinois) does not recognize the validity of such a relationship and provides no similar safeguards.

The obvious answer for resolving property problems is to have a written agreement concerning the disposition of jointly owned property. The money spent consulting with a lawyer at the beginning of a relationship to draft such an agreement can save thousands of dollars later on. It is the smart LGBT couple that executes a written agreement to cover their potential property disputes at the time their relationship begins instead of when it’s on the rocks.

But what if they don’t have anything in writing? What can be done? One suggestion is that in the beginning of the relationship each member of the LGBT couple own their property in their own names so that in case of a breakup they could take away from the relationship everything they bought. And they could still provide for their partner lover in case of death by using a combination of the following:

An Illinois land trust or a revocable self declaration of trust to own real estate one lover could own the house in his or her name and only in the event of death would ownership pass to the surviving lover.
Another answer is for the partners to own their bank, savings and stock brokerage accounts in a form called a “totten trust.” A “totten trust” is simply the name for a kind of bank account where one person deposits money in his or her name as trustee for another.

The depositor reserves the power to deposit and withdraw all or part of the money at any time. Upon the death of the depositor the money in the bank account is paid to the named beneficiary of the trust, the surviving lover.

By using a “totten trust” savings account each member of the couple could establish savings and bank accounts and keep sole control over the money while alive. In case of death the money would go to the surviving, lover with or without a will and without need for probate.

If at a later date the couple decides to change their accounts and establish joint accounts with equal rights of withdrawal, he or she can do so on a schedule the security and confidence of the relationship allows.

And for the couple that intentionally decides to make a commitment to their relationship by owning their property jointly instead of separately? In that case I advise the use of negotiation, mediation and arbitration in making a split of the property to see if the couple can’t achieve a fair property agreement through compromise.