Discussing a prenuptial agreement with your soon-to-be spouse is difficult, no matter your circumstances. Nobody likes to discuss the potential end of their marriage before the marriage has even begun. While prenuptial agreements may be an uncomfortable topic to discuss with your future spouse, there are a number of situations, including the marriage of a same-sex couple, in which having a prenuptial agreement is extremely beneficial.
For many young couples with few accumulated assets and no children, the cost of a prenuptial agreement may outweigh the benefits it would provide. For others, though, such as older couples who have accumulated wealth prior to their engagement, a prenuptial agreement may be well worth the investment. In light of last year’s legalization of gay marriage throughout the United States, there is another group that should especially consider prenuptial agreements: same-sex couples.
Similarities and Differences
All of the same factors an opposite-sex couple would review when considering a prenuptial agreement may still apply to same-sex couples. If both spouses have accumulated wealth separately, or have children from past relationships, putting a prenuptial agreement in place can help protect both parties. However, in addition to the standard factors to consider, same-sex couples have something else to take into consideration.
While gay marriage has been legal in some states for quite a while now, that has not been the case everywhere until the summer ruling by the U.S. Supreme Court. In states where gay marriage was not available, many same-sex couples considered themselves partners, living together and working towards similar life goals. For all intents and purposes, their relationships were marriages, although they were not legally allowed the benefits or label of marriage. Now, same-sex couples need to make special considerations when deciding to marry.
Length of Marriage
In the unfortunate case of divorce, courts tend to rule that the length of marriage is determined by the legal date of which the spouses were married. Even though the parties may have been committed to each other and, in many cases, living together for decades prior to marriage, courts will still generally only consider the legal length of the marriage when making decisions on important issues like determining spousal support or dividing property. For the many same-sex couples just recently granted the right to marry, this can be problematic. If courts across the United States apply this rule, a same-sex couple that has been together for a substantial period of time but only legally married for a year or two may only be legally “credited” with being married for a few years. For divorcing same-sex couples, this can lead to an unfair result of the divorce.
For instance, consider a same-sex couple that has been in a committed relationship for years. Both partners may have mapped out a plan – one partner will pursue their career while the other stays home and maintains the house or takes care of the children. The couple would have gotten married, but were unable to due to same-sex marriage being unavailable. Instead, they continued through life in nearly the same way a married couple would. The working spouse may accumulate more assets over the years, and may have even been the sole party to apply for a home loan. Fast forward to 2016, and the couple decides to get married, now that same-sex marriage is available. Two more years later, they decide to divorce. A court could determine the non-working spouse is not entitled to anything prior to the legal date of the marriage.
What Should Same Sex Couples Do?
Courts must consider several factors when determining property division and spousal support, and some courts may even decide to count periods of cohabitation before marriage during their decision making. That said, does anyone want to leave their future in the hands of a judge? If same-sex couples considering marriage have been together for many years and have accumulated wealth and property, a prenuptial agreement should absolutely be considered. Otherwise, in the unfortunate case of divorce, the couple’s fate may be left to the broad discretion of the court.
In Illinois, prenuptial agreements can be challenged in court if they are not carefully drafted. If you and your partner are considering a prenuptial agreement, you need the help of an experienced Orland Park family law attorney. Call Kezy & Associates today at 708-518-8200 to schedule your free introductory consultation today.