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Navigating prenuptial agreements for same-sex couples getting married

Navigating prenuptial agreements for same-sex couples getting married

As same sex couples tie the knot in the growing number of states where same-sex marriage is legally recognized, the idea of getting a prenuptial agreement isn’t top of mind. Many of these couples are still enjoying the euphoria of the recent court ruling allowing same sex marriage. Additionally, we have a limited view (if at all) of what a same-sex couple’s divorce would look like.

Still, understanding a prenuptial agreement and whether it is a fit for your situation is worth it. You can plan now to protect each other should the marriage not work out.


Do

Do figure out if a prenuptial agreement is even needed

If you are young, with minimal assets and this is your first marriage, you may not need a prenuptial agreement. On the other hand, your fiancé may require a prenuptial agreement if he or she has considerable assets. If this is your second marriage and you have children (including adult children) from your first marriage, a prenuptial agreement may be worth consideration for your own peace of mind and estate planning.

Do have an open mind

Certainly there is a stereotype that prenuptial agreements are callous and only favor one person, the one who wants it. We see prenuptial agreements all the time on television and in the movies. It’s that classic scene where the woman about to marry her (wealthy) prince is handed a document minutes before the wedding that she needs to sign so they can live happily ever after.

Are there situations where the prenuptial agreement is unexpected or last minute? Certainly there are. But, in many cases, a prenuptial agreement is carefully crafted and both parties are aware of and agree on the contents. Some couples are coming off of a divorce or witnessed a messy divorce between their parents. They are realists, and planning to protect each other, not destroy each other in the case of divorce.

The profile of today's bride and groom has changed from the days when two penniless love-birds began their lives together after marriage. Now many couples, especially same-sex couples marry later in life, after becoming successful in their own careers. They may have acquired homes, significant financial assets, and hefty retirements. Given these practical reasons, romance can still flourish if a prenup is approached in a sensible, yet sensitive manner.

Do consider how much money a prenuptial agreement could save you

A simple prenuptial agreement can cost a couple thousand dollars. Compare that to the hundreds of thousands you could spend battling out a nasty divorce.

Do make it fair

In many states, law requires the prenuptial agreement be fair at the time it is created. However, don’t let that keep you from getting legal counsel to work through all of the details before you sign the document. Think ahead and plan for various scenarios including:

  • Children: Will one of you quit your job to take care of them?
  • Sickness: You can have a provision allowing for spousal support should one of you get sick, or if an existing condition worsens.

Do consider what a divorce without a prenuptial agreement looks like

Same sex couples who enter into a marriage with significant assets should know what a divorce without a prenuptial could look like. Imagine months of back and forth about every single asset in the marriage. Do you really want to go step-by-step and split it all up?

If the couple is on bad terms, this process could take years. It is time consuming and even emotionally and physically draining for the parties involved. Having a prenuptial agreement would eliminate much of the confusion, fighting and back-and-forth that can occur at the time of a divorce.


Don't

Do not let your heart make all the decisions

For some couples, particularly those who have been together for many years, if not decades, and jump at the chance to marry as soon as their state allows it, the very thought of a post-divorce existence can seem rather unloving. But, even with the talk of alimony and tax consequences, the prenuptial process, when done correctly, can draw a couple closer. The bottom line is to make sure you use your head when getting married and consider a prenuptial agreement a smart move as well as a method of protecting each other in the event you decide to end the marriage.

Do not assume a prenuptial agreement is set in stone

As mentioned, in many states, a prenuptial agreement must not only be fair at the time it is created, but it must also be deemed fair at the time of the divorce. At that time, circumstances may have changed including employment, health and children.

Some of our cases have involved couples who had children not anticipated at the time the parties signed the prenuptial agreement, people who have experienced debilitating illness during the marriage, and others who have experienced lifestyle changes not anticipated at the time of marriage, like becoming stay-at-home parents.

Prenuptial agreements can be contested and changed, especially when there are significant changes since the creation and signing of the agreement.

Do not skip the finances talk - have it before you get engaged

Deciding whether a prenuptial agreement is right for you is your decision. Every situation is unique. If you’re trying to decide if a prenuptial agreement is a good idea, maybe it is best to first have a talk about money. For the best outcome, try to get a general sense of your partner's approach to finances before becoming engaged. Talk openly and honestly about financial situations that you may have to deal with as a couple and express your expectations and anxieties about money.

Do not rush into a prenuptial agreement

Sure, it can feel unromantic to discuss the possibility of a divorce, but on the other hand, it is romantic to know that the person you are committing to for the rest of your life is open to discussing any issue, even if it is as personal and emotionally complicated as a prenuptial agreement.

Just be very careful to have this conversation early and well in advance of the wedding. Rushing to sign a prenuptial agreement before the wedding is not a smart decision and can cause unwarranted anxiety. It may also cause the agreement not to be enforceable.

Do not assume you’ll get spousal support

Spousal support is financial assistance that recognizes a partner's contribution to the marriage and helps the recipient achieve financial independence. Alimony is available only to those who were legally married; and, rules vary by state. The court will award financial assistance based on factors such as the duration of the marriage, each person's earning capacity, contribution to household or career, and physical health of the recipient. Spousal support is never guaranteed and in many cases, is difficult to obtain.

There may also be specific guidelines in the prenuptial agreement about spousal support. Be sure to understand and agree to those terms.


Summary
Jumping cartoon

Certainly no one wants to think about divorce when they are newly engaged. But, we all know it is a possibility. Do your homework and figure out whether a prenuptial agreement is fitting for your situation. For many same-sex couples, a prenuptial agreement can be a beneficial way to protect each other’s assets and limit the potential bickering and back-and-forth if a divorce becomes a reality.


More expert advice about Finance for Couples

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Kathleen M. NewmanAttorney

With extensive experience in all aspects of marital dissolutions, Kathleen M. Picotte Newman has represented many complex and ongoing matters in the personal, financial and business interests of her clients. You will likely first notice her quie...

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