skip to Main Content
Schedule A Consultation: (646) 770-3868
Can A Prenuptial Agreement Help With Same-sex Divorce Issues?

Can a prenuptial agreement help with same-sex divorce issues?

Marriage and divorce are both challenging topics for anyone; but never have these subjects been more difficult at this point in history than for same-sex couples. As most people know, the subject of same-sex marriage has repeatedly come up in many states in recent years. Some states, including New York, now legally recognize same-sex marriage. While this is generally seen as a triumph for the rights of gay and lesbian couples in these states, it opens up a whole new set of questions when divorce enters the picture, especially in states where these marriages are not recognized.

For same-sex couples, getting a divorce isn’t as simple as hiring a lawyer, going to the courthouse and filing for divorce, even in states that recognize same-sex marriages. Because the laws are relatively new, common divorce issues such as child custodyalimony and property division can be complicated in a same-sex divorce. These matters can become even more entangled in confusing red tape if the couple now lives in a state that does not recognize same-sex marriage-a scenario that’s all too common, as many couples traveled to states where they did not live in order to get legally married, or simply choose to move to another state after the marriage.

Prenuptial agreements for same-sex couples: a portable solution?

Many same-sex couples were already well established in long-term relationships before tying the proverbial knot. In these situations, homes and vehicles may have been bought jointly, finances shared and children raised. Binding these already established assets in a legal marriage, while desirable for most married couples, can be excruciatingly complicated to sort out in a same-sex divorce. However, a prenuptial agreement may help because these agreements, if carefully drafted, are recognized in every state, even in a state that may not recognize the marriage; but only if it is done 100% correctly. There is no margin for error when drafting a same-sex prenuptial agreement. It will held to be either valid, or invalid. This is not the type of matter where a couple could simply download a form from the internet and believe they will be protected. Even your “average” family law attorney may not be aware of the intricacies and subtleties involved in protecting same-sex couples in an unfriendly same-sex state.

A properly drawn and executed prenuptial agreement may help same-sex couples to avert the following complications:

  • Protection of premarital assets and related appreciated
  • Division of marital property
  • Payments or limitation of future alimony (maintenance)
  • Sharing of retirement benefits.

Risks of equal parenting presumption

Laws supporting shared parenting typically make provisions for cases when shared parenting would clearly not be ideal – for instance, when one parent has a history of abusing the child or other parent. However, critics worry that it could still be burdensome for parents to protect their children from dangerous arrangements, according to USA Today. For example, in some cases of domestic violence, victims may lack legal proof of the abuse because they have failed to seek restraining orders out of fear or for other reasons.

Some critics also believe a preference for equal custody may prevent family law judges from finding the arrangement that is truly best for the child. In some cases, critics contend, the best interest of the parents may even override the best interests of the child.

Some couples living in states that don’t recognize same-sex marriage may find their only option to obtain a divorce is to relocate to one of the states where these unions are legal, and establish residency to file for divorce. Understandably, this very limiting option is not possible for many people. It can be a good idea to avoid future problems and gain peace of mind by speaking with an attorney about a prenuptial agreement. An attorney who has extensive experience in same-sex legal issues can also help assist you in navigating through the process of same-sex divorce, if the need should ever arise.

Back To Top