Breaking up is hard to do.

With as much as $40 million at stake, the high-profile split between former E*TRADE chief Kathy Levinson and her partner demonstrates the importance of legal marriage protections--especially when it comes time to call it quits 

During her nearly 20-year relationship, Jennifer Levinson considered herself married in every sense to her partner, Kathy Levinson.

On many counts, the Levinsons mimicked the Ozzie and Harriet model of the American family: While Kathy moved up the corporate ladder to become chief operating officer of E*TRADE, the wildly successful online brokerage firm, Jennifer stayed at home and took care of their two children and the house. "If you go back to the 1950s model, Kathy was the husband, and I was the wife," Jennifer says.

There was, of course, at least one crucial difference between Kathy and Jennifer and Ozzie and Harriet: Kathy and Jennifer didn't have a marriage license.

There are many indications, however, that they would have married if it were legal. Though Kathy is the biological mother of their two young children, Jennifer adopted them. Jennifer even legally changed her last name to match Kathy's.

And last year their personal relationship turned highly public when Californians were asked to vote for a ban on gay and lesbian marriage. The Levinsons became national poster girls for same-sex marriage, speaking out against the referendum and forking over $300,000--as well as helping to raise hundreds of thousands more--to help finance the unsuccessful campaign to defeat it.

Until the two broke up in April 2000, Jennifer says she thought the relationship "was equal in every way--including financially." But ever since the bitter split, the two have been locked in an acrimonious who-gets-what squabble. When Kathy retired in May 2000 from E*TRADE, her net worth was estimated at as much as $40 million. And as Kathy's de facto wife, Jennifer says she deserves half of everything.

But married is a legal term, and "we [gays and lesbians] still don't have it," says Cliff Staton, a spokesman for Kathy Levinson. (Levinson declined to talk with The Advocate.) "We're not guaranteed the rights of married people," he says--including the same rules of divorce.

With the exception of Vermont, where a same-sex couple wanting to dissolve its civil union can go through the same family court system as married couples wanting a divorce, there is precious little legal framework for same-sex couples who call it quits.

"At best," says Suzanne Goldberg, an assistant professor of law at Rutgers University in New Jersey and a family law expert, "the law treats a same-sex breakup as a business deal between two people about property. It's highly dependent on whatever separation agreement the couple may have. It's done without the complex background rules of divorce, which take into account the context of sacrifices and decisions two people make as a family unit. Divorce rules have evolved to ensure the partner in the weaker financial position is not left penniless. But when gay and lesbian couples separate, it boils down to who holds the purse strings."

The irony, of course, is that "one of the best arguments for gay people's freedom to marry is divorce," says Evan Wolfson, director of the Freedom to Marry Project in New York City [see Wolfson's Commentary on page 34].

"When straight people marry, it's understood that they acquire certain property rights simply as part of the status of marriage," says Erica Bell, an out lesbian partner at the New York law firm Weiss, Buell, and Bell. "As long as gays and lesbians are denied the right to marry, we're denied those property rights as well. It's all about status--plainly put, we just don't have it." Just like in marriage law, she says, gay people are virtually invisible in divorce, legally speaking.

In only one state besides Vermont has there been significant legal recognition for gays and lesbians who end their relationships. Leaning on a series of laws known as "equitable" or "fairness" doctrine, a Washington State appellate court ruled in the late 1990s that unmarried partners are presumed entitled to half of the couple's combined assets, even without a written or oral contract.

Based on that ruling, some Washington municipalities are applying family law principles to lesbian and gay couples, says Frederick Hertz, an Oakland, Calif., lawyer and one of the nation's leading experts on gay and lesbian divorce. However, he cautions, the Washington ruling involved an unmarried heterosexual couple, "so there is still fierce debate if it applies to gays or not."

Hertz is the author of Legal Affairs: Essential Advice for Same-Sex Couples and also is representing Jennifer Levinson in her lawsuit against Kathy Levinson. He says there are about five states in which gay people have absolutely no legal recourse when seeking redress during a separation. In at least three other states (Minnesota, Texas, and New York), any court claim must be based on the violation of a written agreement.

In most states unmarried couples--straight or gay--can theoretically make claims on money or property, based on agreements that are written or verbal or can be proved by patterns of conduct. These claims are duked out in civil court rather than family court, and they must be based on the individual state's contract laws. "And that means that, every step of the way, the legal system favors the one with the power, the one with the assets," Hertz says.

Jerry Chasen, a principal with Miami law firm Chasen and Associates, agrees. "It's almost always the person without the money who seeks legal help" in a gay or lesbian breakup, and that person "is trying to assert his or her rights as if they were in a legally recognized union," he says. Unfortunately, he adds, "they often don't have a legal leg to stand on. The law just doesn't provide any kind of recognition for this kind of relationship--and thus no recognition when the relationships fall apart. An intimate [same-sex] relationship doesn't mean squat to the law."

Though the rules vary widely from state to state, Hertz says that, in general, "divorce law is the most enlightened law in America." Women, typically at an economic disadvantage in heterosexual marriages, are no longer at the mercy of their husbands, he says. But when gays and lesbians sever their relationships, "the weakest one gets screwed. The absence of marriage leaves us vulnerable."

Vulnerable is exactly how "Ben" (who asked that his real name not be used) says he felt when he found himself in the midst of an acrid breakup with his partner of 10 years. The couple's $350,000 home in a wealthy Philadelphia suburb was in both their names, and the pair had a verbal agreement that they would divide the sale of the house down the middle should they ever go their separate ways. But Ben says that during the breakup, his partner said several times that he thought he deserved the lion's share from the house's sale.

When Ben and his partner first moved in together, both men earned roughly equal incomes. Within their first year as a couple they purchased their first house. Ben footed the entire $80,000 down payment, and the two split the mortgage payments 50-50.

A year and a half later, Ben's partner inherited $750,000 and a paid-off family home. Using the proceeds from the sale of the family home plus the profit from the sale of the house they lived in, the couple upgraded to a larger place. Again, they split the mortgage payments equally. Ben's partner did pay a higher percentage of the utilities and upkeep, but Ben says he himself was the handyman who kept the place in shape.

Ben was troubled when he says his ex began making noises about getting more than half the value of their shared property. "We never had a written agreement. I was worried he was going to show up at the settlement table and demand 75% of the profits, and I knew a judge wasn't going to look at two men the same way he would a married couple."

To protect himself, Ben hired a lawyer who basically threatened to out Ben's partner at work if he tried to claim more than his fair share. "It was essentially blackmail," Ben says. "But I couldn't depend on the laws, and this was fair. If I didn't do something to protect myself, I might have been ripped off."

Today, Ben and his current partner share a home in Delaware. Because Ben's partner has a spotty credit history, the couple decided to put the house solely in Ben's name. However, Ben insisted they draw up legal documents spelling out that they each own a 50% share. "I wanted my partner to feel a sense of ownership even though his name isn't on the mortgage," Ben says. "And I didn't ever want him to feel the way I had."

But Ben and his partner are the exception rather than the rule, most legal experts agree. "It's easy to understand why so few gay and lesbian couples avoid the topic," Goldberg says. "No one wants to think about the possibility of breaking up when they are in love." Furthermore, as Chasen points out, even if a couple manages to broach the subject, there's no guarantee that the person in the weaker financial position will get a fair deal.

The Levinson case demonstrates that drawing up legal documents doesn't guarantee that confrontation will be avoided. Jennifer Levinson says that in 1989 she and Kathy drew up a partnership agreement outlining their finances: "But it was prepared when we were both working and there wasn't much disparity between our incomes, before we had children, before I quit my job to take care of our home affairs, and before we had wealth." Since that time, she adds, "our lives changed dramatically: I quit work, raised the kids, and kept house, while she got a gazillion stock options." Although she did not give specifics about the agreement, she says it "is outdated" and would leave her practically penniless.

Staton, Kathy Levinson's spokesman, disputes Jennifer's version. "Kathy's view is that because they were unable to get married, they created a series of contracts to guide and define their relationship," he says. Staton describes the couple's written financial agreement as being "worth millions of dollars to Jennifer" but says that she is now trying to alter the terms of the agreement in hopes of winning more money.

Under California law, married couples split the family assets 50-50 when divorcing, in the absence of an agreement to the contrary. Jennifer Levinson says she should not deserve less simply because her relationship was to a woman rather than a man. (The couple share custody of their 5- and 8-year-old children.)

"If we were married and she was the man, there's no question this would absolutely be easier," Jennifer says. "But because the courts didn't recognize me and Kathy and the kids as a family, it's applying business and contract law to my marriage. That's devastating and demeaning."

With evident sadness she adds, "Mine is the perfect example of why we need all the rights of marriage--including divorce."

Dahir also writes for Self, Business Traveler, and Good Housekeeping.