04/18/2011 10:50 am ET Updated Jun 18, 2011

The Non-Married Divorce

It's the off-season and we miss Don Draper, not just the eye candy but also the charming, seductive bad boy who, when last we saw him, was about to marry his secretary. So we were relieved to see his off-screen self, Jon Hamm, featured smiling in the New York Times (check out the Sunday March 6th Arts Section) with longtime companion/collaborator Jennifer Westfeldt, actress and filmmaker of Kissing Jessica Stein fame. This calls to mind, for us, what it means to intertwine one's love, money and business, without a legal contract (marriage). Or, put differently, what does it mean to break up when your best friend and lover is the same person as your business partner and all the money belongs to both of you? In most states, there's no legal standard for what is essentially a divorce. Of course, for you folks in common law states, you're ahead of the curve. Nonetheless, same sex couples across the land often face the same legal vacuum as the long-time non-married partners.

Just as couples who have the imprimatur of the legal system can reject those standards when they mediate the terms of their own divorce, so too, non-married couples straight and gay, can avail themselves of mediation as a forum in which they can create meaningful and legally binding contracts. In fact, we see that all the time.

Owning a home together, carrying mutual credit card debt, starting up a business and collaborating for years, (that's the sometimes the source of the romance) can all be unwound through wise deliberations out of Court. Just as married couples often choose to analyze their finances and budgets, based on full open disclosure, as a means to develop their divorce agreements, so too, non-married couples can figure out the best terms for their own "divorce." In mediation, each person gets to assess what they feel they've contributed to the relationship and the business and what they each need to get on with their lives. To make it more complicated, sometimes the romance has faded but the business is booming -- no need to split up as partners at work.

There are, of course, advantages to having once marched down the aisle: Married folks pay fewer taxes and, in the context of divorce, can make tax-free exchanges and distributions of assets. But if you've lived together and shared the mortgage, one of you may be hit with capital gains taxes if the other buys you out. Even in the few states that have legalized gay marriage, gay couples cannot avail themselves of federal benefits. For example, a gay marriage would not entail the tax-free distribution of pension benefits.

In recent years, New York has set itself up as the punchline to a joke: gay couples can get a legal divorce here, just not a wedding ceremony. For Hollywood couples like the "Hammfeldts," there are often behind-the-scenes managers and agents anticipating all kinds of conflicts. For the rest of us, who choose not to marry, or do not have the option, breaking up, though hard to do, is not impossible.