Those of us in the gay community who are in long-term relationships have many legal hurdles to overcome when it comes to taxes, mortgages, health care, estate planning and other property matters, but now with Merle Horwitz’ book, Love is Love But… Business is Business, we can jump through one of those hurdles with less hassle and more humph.
In his book, Mr. Horwitz, a former trial attorney and contracts law guru, provides simple advice and guidance in navigating the realm of cohabitation. Within the confines of the pages of this small but insightful instruction manual, Mr. Horwitz answers questions such as:
- What happens to property acquired jointly?
- How to I keep my separate property as my property?
- What if you are cohabiting with one person and having an affair with another?
- What about the kids?
- “Can homosexuals who are cohabiting without a contract have the same rights arise as heterosexuals?”
- and many more of the worries of cohabitation.
Mr. Horwitz is quick to point out that the cohabitation agreement in his book, although primarily for “those who can’t get married or those who won’t get married,” is not an agreement for the type of relationship, but for the property secured before and during the relationship. In other words, the book is about property issues, not the nature of the relationship.
I had an opportunity to speak to Mr. Horwitz about the contract and its validity when confronted with various state laws. For example, in some states, same-gender marriage bans written into the state’s constitution include language which bans anything “similar to marriage.” This language, in large part because it is so broad, could potentially be construed to include wills, powers of attorneys and even Mr. Horwitz’ Cohabitation Contract.
In fact, the language is so broad that when proposed to Wisconsin voters, then attorney general wrote:
A ‘yes’ vote [for the marriage ban] would also prohibit recognition of any legal status which is identical or substantially similar to marriage for unmarried persons of either the same sex or different sexes. The constitution would not further specify what is, or what is not, a legal status identical or substantially similar to marriage. Whether any particular type of domestic relationship, partnership or agreement between unmarried persons would be prohibited by this amendment would be left to further legislative or judicial determination.
In spite of the fact that voter’s were presented with these remarks (which read like a warning label) prior to casting their ballot, Wisconsin voters overwhelmingly approved the amendment.
However, when asked how this language may affect the validity of contracts in jurisdictions such as Wisconsin, Mr. Horwitz stated:
That’s so vague, it cannot be enforced.
Mr. Horwitz further explained that the contract could not be invalidated based upon laws against cohabitation:
I’m perfectly convinced that if two people have a contract whether they are the same gender or otherwise, when it comes to enforcing that contract… why would that not be enforceable because the nature of the relationship doesn’t even come into evidence?
In part because I’m less optimistic than Mr. Horwitz and in part because I’m an activist and want to establish Court challenges of these laws, I asked Mr. Horwitz if he felt submitting the contract for declaratory judgment in jurisdictions such as Wisconsin would be advisable. His response was resounding:
You don’t ask for trouble. You don’t want to do that.
As a person who would want my contract to remain fully enforceable during my life or after my death, he’s absolutely right, I would not want to do that. But would I want to do that as an activist for LGBT rights? I contemplated this issue by asking two questions: (1) What would happen if the contract was declared by the Court to be invalid; and (2) What would happend if the contract was declared by the Court to be valid?
(1) What would happen if the contract was declared invalid?
It is my belief that if declaratory judgment was issued stating the contract was invalid, such would open numerous doors for Court challenges and expose this legislation for its spiteful content. Many moderate folk claim to be supportive and non-critical of homosexuals, but wrongfully believe that marriage is a sacred right. Some wrongfully argue that laws against same-gender marriage are not discriminatroy because same-gender couples can obtain the same rights by way of contracts and other legal documents. The declaration of a cohabitation contract as invalid by a Court would certainly show beyond any argument that these arguments are completely false. Thus, a victory for the LGBT civil rights movement, in spite of a negative ruling.
(2) What would happen if the contract was declared valid?
Although on the surface (or prima facie since we’re talking law) it would seem to be a victory for LGBT civil rights, such a finding would improperly re-enforce the argument outlined above; that same gender couples can obtain the same legal rights as married couples by legal documentation; therefore, a bitter sweet moment. Obviously, many benefits cannot be obtained by contract that can be obtained through civil marriage (such as: Social Security benefits, health care tax relief, wrongful death or survivor benefits). However, it is unlikely that those making arguments against same-gender civil marriage would be aware that such inequalities exist.
I thus decided that Mr. Horwitz is a genius. “You don’t ask for trouble.”
You can purchase Mr. Horwitz’ book (which includes a CD with an editable contract) “Love is Love… but Business is Business” at Amazon.com.