The 2015 Supreme Court ruling in Obergefell v. Hodges legalizing gay marriage across the United States was a momentous day, correcting and acknowledging years of systemic discrimination. Rightfully so, post-ruling, there has been a rush by many to legitimize their marriage in the eyes of the state to enjoy the protections and benefits of marriage they deserve. However, it is important to keep in mind that both death and divorce do not discriminate, and certain pre-marriage administrative and protective procedures should be taken care of before the big day.

Financial distributions and child support issues are now very much a legal reality. In the eyes of the law, the same issues that have plagued opposite-sex couples, now affect same-sex couples. However, same-sex couples may face additional problems and considerations, with lacking judicial precedent and guidelines to advise courts on how to handle divorce. As low as 20% of same-sex couples speak with a lawyer before getting married, a troubling statistic considering the CDC places the national divorce rate at almost 50%. In order to ensure protection and certainty should something go awry, it is recommended all couples enter into a Prenuptial Agreement (Prenup) before committing to “happily ever after.”

What Is It?

A Prenuptial Agreement is a written contract drafted before marriage, outlining the rights and obligations of both parties in the case of death, separation, annulment, and the most common; divorce. The termination of a marriage is inevitable. A Prenup provides a comprehensive framework of important financial and social obligations and rights, including how assets are to be divided, the amount of alimony, and issues concerning child support.

Below are five reasons why you and your future spouse should take some time to sort out the “what ifs” and financial specifics of your relationship with a Prenup before taking the plunge.

5 Reasons Why You Should Consider a Prenup

• A Court May Not Fully Appreciate the Length of Your Relationship

Same-sex couples that divorce or terminate their marriage after decades already together face difficulty proving the actual length of their relationship. In the eyes of the court,  and as defined by most case precedent, same-sex marriages may be interpreted and “credited” as only valid and legal from the “date the legal marriage occurs,” not cohabitation. This skews the reality of the relationship, leading to a high possibility of an unfair judicial determination or distribution. You may end up receiving lower spousal support payments than expected or deserve, or your ex-spouse may improperly receive the dog or that second three-bedroom apartment in Manhattan.

• Spousal Sacrifices May Not Be Considered

But for the failure to legalize same-sex marriage, you and your spouse most likely would have been married. With all relationships comes sacrifice and compromise, and those should be taken into consideration. Maybe you gave up that career in BigLaw to stay at home and take care of the children, while your partner set forth on a prosperous career in pharmaceuticals. Over that time, your working partner’s earning power increased, while yours remained stagnant or declined. Maybe your significant other acquired substantial wealth and property interests in their own name, or applied for your family home’s loan under their name. Without a Prenup, your intangible contributions to the marriage may fail to be accounted for, leaving you jobless, penniless and at a significant disadvantage when embarking on a new journey.  

• Assets Acquired Before Marriage

It’s common for couples to commingle assets before marriage, making the distribution process that much harder after termination. That checking account you opened prior to your marriage might not necessarily be considered separate by a court if you kept it open and maintained during your marriage. Both parties want to protect assets they owned before marriage, especially if it was arrived at independently. Prior to your vows, you should address who owns what, what is considered joint property, and how assets should be distributed. The following property is generally considered separate property and not converted into “marital property” upon marriage:

1. Inheritance property
2. Property acquired before marriage
3. Gifts received from a third party
4. Compensation for personal injuries sustained due to a spouse
5. Property defined as separate property in a written agreement

• One Spouse is Heavily in Debt

Exorbitant debt isn’t the outlier anymore, it’s the norm. It’s in your best interest to find out whether the partner of your dreams has accumulated mountains of credit card debt or student loans before the big day because it affects you. It’s better to find out now, instead of years down the road when rummaging through your closet and finding shoe boxes filled to the brim with receipts. When it comes to credit card debt, joint accounts make both parties liable for 100% of the debt, appearing on both parties’ credit reports. Divorce doesn’t completely eliminate joint debt, meaning you will still be on the hook to creditors, even if the debt was accumulated entirely by your spouse. A Prenup allows you and your spouse to address your financial future, including your investments, savings, debts, and how those debts should be paid off. Doing so can save you from financial ruin and ensure a financially stable future.

• Taking the Finances Off the Table to Focus on the Heart

At its simplest, taking the finances and other administrative decisions off the table allows you and your spouse to focus on your relationship. Finances and the future can be high-stress topics, but when they are already taken care of, both couples can go forth with less worry and stress. Clarifying your relationship allows both partners to feel like they are on an equal playing field and “clued in.” Getting a Prenup doesn’t mean you and your spouse are any less romantic, it means you are practical and prepared.

Prenups aren’t compulsory. But, if you and your spouse-to-be have been together for more than one year, have established financial portfolios, and want to protect yourselves from potential financial uncertainty in the case of divorce, you should consider executing a Prenup today.

Author Bio
Rachel Ryan is a legal writer for LegalTemplates.net. Rachel specializes in providing professional, diverse and creative articles, equipping individuals with the perfect tools for a variety of legal issues. When she’s not writing awe-inspiring content, she can be found trying to become the next Martha Stewart.

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5 Reasons Same-Sex Couples Should Consider a Prenup

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