Does Your Same-Sex Marriage Need a Prenuptial Agreement?

In a column last year after the landmark Supreme Court ruling striking down the prohibition of federal recognition of same-sex marriages, a Forbes writer drew an analogy between the coming wave of same-sex marriages and the significant uptick in marriages after World War II.

Although noting that the numbers could potentially be similar, he observed a key difference — the couples marrying after the war typically had nothing in the way of assets, while many same-sex couples have considerable assets to their name because they’ve often been together for a long time.

Because of the complicated and ever-changing nature of the law, same-sex couples should take extra precautions before proceeding with a marriage. One such measure might be the drafting and signing of a prenuptial agreement, which is intended to help couples deal with the division of assets in the event of divorce. It’s particularly helpful if either or both spouses have substantial assets, own a business together or have significant debt. The basic elements of a prenup are the same regardless of the sexual orientation of the couple.

However, there are also factors unique to same-sex couples that need to be considered. One is the issue of what to do if the couple relocates to a state that doesn’t allow same-sex marriage and won’t recognize same-sex divorce. Planning for such a possibility in your prenup is a good way of covering your bases. Another factor that may arise is that, if you and your spouse-to-be have already entered into a civil union, there may be issues with trying to establish a prenup, as it may constitute a sort-of “mid-marriage” agreement. This is a complex and evolving issue and one that may require the input of an experienced lawyer.

If you have questions related to same-sex marriage and whether you should sign a prenuptial agreement with your partner, speak with a knowledgeable family law attorney at Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia, LLP today. We serve clients in and around Suffolk and Nassau counties in Long Island, NY.