Wednesday, September 07, 2011
Prenuptial Agreements and Same Sex Marriages
Several states, most notably New York, have legalized same sex marriages in recent years. While this has been a huge victory for human rights in general and the gay community in particular, it has also raised several new challenges for our legal system with regard to same sex divorce.
In many ways, the rules governing same sex divorces mirror those governing divorces between heterosexual couples. However, same sex marriages are often entered into under vastly different circumstances than heterosexual marriages. It is not uncommon for same sex couples who have been together for many years, and in some cases for decades, to get married when living in a state that has recently legalized same sex marriages.
In these long term relationships, couples typically have amassed a considerable amount of property and assets during the course of their relationship which are not considered “marital property” because the couple had not legally been allowed to get married earlier in their relationship. Clearly, this property represents what would be considered marital property for heterosexual couples who have entered into marriage as part of a long term monogamous relationship. Yet, due to technicalities of law, same sex couples who have acquired property and assets together during their longstanding monogamous relationship may have a difficult time dividing this property in the event that their relationship ultimately ends in divorce.
For this reason, same sex couples should carefully consider the effect marriage will have on the property they have acquired during their relationship before they marry, and how that property will be divided in the event of a divorce. It becomes extremely important for these longstanding couples to strongly consider entering into a prenuptial agreement before they get married so that these issues can be considered calmly, intelligently, and thoughtfully while they are still in love. Without a prenuptial agreement, couples may be forced to consider these issues for the first time while engaged in a highly charged divorce action, where all civility is often (and ill-advisedly) thrown out the window.
In many circumstances involving same sex marriages, prenuptial agreements are crucial, and should be drawn up and signed well before the wedding is to take place. Naturally, a skilled and experienced family law attorney is the best qualified person to give advice regarding prenuptial agreements, and to draft these agreements for you and your partner. It is important to give your lawyer several months prior to the date of your marriage to negotiate, draft, and if necessary, revise your prenuptial agreement. This will ensure that the final agreement produces the fairest possible result for each partner.
posted by Andrew @ 1:40 PM
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