Same-sex marriage is now legal in many countries, including the United States (shout out to Ruth Bader Ginsburg and the other Supreme Court justices who helped make that happen). However, just like heterosexual marriage, same-sex couples also face the possibility of divorce. A prenuptial agreement, or prenup, can be a valuable tool for both opposite-sex and same-sex couples. In this article, we’ll explore the benefits of having a prenup for same-sex couples.
What is a Prenup?
A prenuptial agreement is a legal contract that a couple signs before getting married. It outlines the financial rights and responsibilities of each partner in the event of a divorce. A prenup can cover a wide range of issues, including property division, spousal support, debt allocation, pet ownership, confidentiality, insurance, and more. By signing a prenup, both partners agree to the terms of the contract, which can help avoid costly and contentious divorce proceedings. It can also facilitate open communication and align expectations for one another in the marriage.
Benefits of Having a Prenup for Same-Sex Couples
Let’s dive into some of the biggest benefits of having a prenup for same-sex couples.
Protecting Assets and Debts
One of the greatest benefits of a prenuptial agreement for same-sex couples is the ability to protect assets and debts. In a divorce, assets can be divided between the couple, which may result in unfavorable outcomes for some people. For example, in California, community property is generally split 50/50. In contrast, in Massachusetts, marital property is generally split in an equitable way, which may be 50/50 or 60/40 or 70/30, or any other combination of split that the court finds equitable. So, how do you make sure your assets are protected? A prenup, of course! By signing a prenuptial agreement, a same-sex couple can divide assets and debts in the event of a divorce as they see fit.
Providing Certainty in the Event of Divorce
Another benefit of a prenuptial agreement for same-sex couples is providing certainty in the event of divorce. Instead of leaving decisions up to the court and your state’s law, you and your spouse can control the process. Making this agreement at a time when you are getting along and in harmony can reduce the stress and fighting that may occur during divorce.
Protecting Children from Previous Relationships
If you have children from a previous marriage, a prenuptial agreement can protect their future inheritance and financial support from you while you’re still alive. For example, if you get a divorce without a prenup, you may forfeit a portion of your assets to your ex. Those assets you lost may cut into your children’s future inheritance or their current financial support while you’re still caring for them.
Protecting Business Interests
For same-sex couples who own a business or have a significant interest in a business, a prenuptial agreement can protect those interests. Valuing and dividing business interests during divorce can be extremely contentious and complicated. Classifying business interests as separate property in a prenuptial agreement will help increase the probability that the business or the value of the business will not be divided in the event of divorce.
Starting Your Relationship with Communication and Transparency
Even if you stay happily married and do not get divorced, entering into a prenuptial agreement brings value. Through the process, you and your future spouse will examine what your future, especially your financial future, will look like together. You two will parse out financial expectations of each other, financial roles during the marriage, and your life goals. The conversation will get deep, and topics you may have never covered before might arise. A prenuptial agreement can be a helpful first step in an ongoing dialogue throughout your marriage.
Avoids Lengthy Legal Proceedings
Without a prenup, same-sex (and opposite-sex) couples may be required to go through lengthy and expensive legal proceedings to determine property division and other financial issues in the event of a divorce. A prenup can streamline the process and help avoid unnecessary legal fees. A prenup essentially determines matters on difficult topics, such as property division, while everyone is still happy in the relationship. So, when (or if) you get to the point of divorce, those decisions are already pre-determined; there’s no need to “fight” in divorce court over them. In turn, saving you lots of time and money!
Provides Financial Security
A prenup can provide financial security for both partners in the event of a divorce. It can ensure that each partner receives a fair share of the assets accumulated during the marriage, including property, retirement accounts, and investments. A prenup can also address spousal support and other financial issues, which can help avoid conflicts and disputes. For example, let’s say one spouse wants to be a stay-at-home parent and forgo a career to manage the home and raise the children; that person may want to have some financial reassurance via the prenup. That might be through a lump sum payment in the event of divorce, alimony, right of residence in the marital home, being provided certain assets, and more.
Can Help Strengthen the Relationship
While discussing a prenup may not be equivalent to sipping wine in Paris along the Seine, there are still ways this can be somewhat…romantic. Hear us out: having a prenup can actually help strengthen the relationship between same-sex couples. By discussing financial issues before getting married, couples can develop a deeper understanding of each other’s financial goals, expectations, and priorities. Better alignment with each other = better relationship = happier couple. Romance, we tell ya!!
Frequently Asked Questions (FAQs)
You may still have questions, and don’t worry; we have answers. See some frequently asked questions about same-sex couple prenups below.
Q: Can same-sex couples get prenups?
A: Yes! In 2015, the U.S. Supreme Court ruled in the case of Obergefell v. Hodges that same-sex couples have a constitutional right to marry and that states cannot ban same-sex marriage. This decision legalized same-sex marriage in all 50 states and paved the way for federal recognition of same-sex marriages. Since then, same-sex couples have been able to marry and enjoy the same legal rights and protections as opposite-sex couples. Prior to 2015, same-sex couples could not get prenups if marriage was not legalized in their state. Why? Because prenups are effective upon marriage, not domestic partnership.
Q: Can domestic partnerships get prenups?
A: No, a domestic partnership couple cannot get a prenup. This is true whether you are in a same-sex or opposite-sex relationship. Why not? Because prenups are effective upon marriage. There are other contract options for domestic partnerships, such as cohabitation agreements, but those may not be recognized in every state. More on domestic partnerships, cohabitation agreements, and prenups here.
Q: Are same-sex prenups enforceable?
A: Yes, prenups are enforceable for same-sex couples. They’re just as enforceable as an opposite-sex couple’s prenup! All prenups, regardless of the gender of the couple, are subject to rules of enforceability. Now, if a same-sex couple doesn’t create a prenup according to their state’s laws on enforceability, then, yes, it may be unenforceable, but not because of their sexual orientation.
Q: Are same-sex prenups different in any way from opposite-sex prenups?
A: No! They shouldn’t be, at least! Whatever you can put into an opposite-sex prenup, you can also put into a same-sex prenup; there are no restrictions based on being a same-sex couple when it comes to the things you can do with a prenup. Of course, what goes into each prenup will depend on the couple’s specific needs, preferences, and finances.
Q: Can a same-sex couple’s prenup be changed after getting married?
A: Yes, most states will allow amendments to a prenup, which usually have very specific state requirements that mirror the requirements needed for the original prenup execution. For example, if your state required two witnesses and notarization of your prenup, then you will most likely need the same exact thing for your amendment.
Q: Is a prenup only necessary for wealthy couples?
A: No! A prenup can benefit all couples, regardless of their financial status. It can provide financial security and help avoid legal disputes in the event of a divorce. Not to mention, you may accumulate assets in the future. For example, let’s think about Jeff Bezos for a second. He didn’t get a prenup before getting married. Maybe he thought he didn’t have significant enough assets? Well, little did he know he was going to become one of the richest men in history! What we’re trying to say is you may not have a ton of assets now, but you may accumulate wealth in the future.
In conclusion, a prenuptial agreement offers numerous benefits for same-sex couples. By protecting assets and debts, providing certainty in the event of divorce, protecting children from previous marriages, protecting business interests, starting your relationship with communication and transparency, strengthening your relationship, and avoiding lengthy legal proceedings, a prenuptial agreement can help to ensure a successful and stress-free marriage.