Do LGBT Prenuptial Agreements Encourage Divorce?

Over the past several decades, the use of prenuptial agreements has multiplied, as more couples realize their usefulness. Yet, some engaged couples shy away from them due to the myth that they encourage divorce. In this post, we’ll dive into the history of prenups, and whether they are linked to divorce rates.

What are prenuptial agreements?

Prenuptials are legally binding contracts that a couple writes and signs before marriage (those signed after you are married are known as postnuptials). Essentially, they spell out how assets and liabilities will be divided, as well as instructions for care of any dependents, such as children, will be handled in case of divorce. For example, prenuptials may include how to divide a mortgage, what to do with one spouse’s inheritance from a grandparent, and how any real estate might be shared.

The history of prenuptial agreements

Different types of prenuptial agreements have existed for thousands of years, as a way to manage economic relations between families and to protect individuals from poverty in the case of marital disagreements or the death of a spouse. In more recent history, prenuptials in the United States were critical to protect women, who held no property rights outside of their marriage until the passage of a series of laws known as the Married Women Property Acts in the 19th century. Prenuptials were meant to offer some form of protection for the woman, should something happen to her husband or the marriage, so that she would not be left penniless. Often, only wealthy families would utilize this type of “marriage insurance.”

However, as marriage has become a more equitable partnership, prenuptials have become more common, and are a useful tool for any marriage, even those without significant wealth. Further, many states, including California, are “community property” states, meaning that all liabilities and assets accumulated during the marriage are split 50/50 in the case of divorce. For many couples, this may not be the ideal situation, so prenuptials are particularly important.

Do prenuptials encourage divorce?

In short, no, they do not. In fact, they often have the opposite effect. While many may feel apprehensive about prenuptials, feeling that it may indicate a lack of commitment to the marriage, a recent study found that it can have very positive effects on a healthy marriage.

Prenuptials require that a couple sits down together and works through all the big aspects of their present and future shared responsibilities together. They must work together to answer questions such as “Will we buy a house?” “Do we need wills and trusts?” “how will we handle our student loans?” “What is important to us for raising children?” and “How should we grow and handle our wealth?”

In rare cases, couples may find that they have big differences in opinion. Working through those differences before a couple is married can be helpful in preventing future disagreements and even divorce. Also, while the LGBT community won the nationwide ride to marriage in 2015 with Obergefell v Hodges, other legal rights are still evolving. Therefore, it is particularly important for LGBT families to consider investing in a strong prenuptial agreement, to ensure that they are sufficiently protected and start their marriage with their best foot forward.


Rather than predicting divorce, instead prenups can be very positive, helping a couple to talk through and build a solid foundation for their marriage. Working with an experienced attorney can help make the experience efficient and smooth, as well as ensure you don’t miss any key pieces. The Gay Family Law Center is a LGBT family law firm. Contact us to set up a free consultation with one of our experienced attorneys to see if we’re the right fit for your family.

Photo by Aaron Burden