LGBT Prenuptial Agreements
June 9, 2017
When planning for your wedding, there are many things to consider. The venue, the guest list, the catering. Though not the most exciting part of your engagement, creating sound prenuptials should be on every LGBT couple’s pre-wedding to-do list. Known colloquially as “prenups,” this set of documents helps lay the groundwork that will help set your marriage up for success.
What are prenuptial agreements?
In a nutshell, prenuptials are legal agreements that state what will happen to assets and liabilities during the marriage, and in the case of divorce or separation.
For example, if one partner has a large amount of student debt, and they wish to remain solely responsible for it, they would spell out in the prenuptial documents that this particular financial burden would not be passed on to their partner.
As another example, if one person owns a house, and wishes to keep the property solely under their name, that can also be clarified in the documents.
Prenuptials must be signed before the marriage, or they will not be valid. This is in contrast to postnuptials, which are signed after the marriage.
What happens if we don’t create a prenuptial agreement?
California has community property law, which means that when a couple marries, the default legal position is that all assets and liabilities acquired during marriage are split 50/50. The law also states that everything acquired before the marriage are meant to be the sole responsibility of the respective individual.
In reality, though, when going through a divorce, without prenuptials it can be very difficult to separate which property, assets, and liabilities were acquired during the marriage, and which before. After all, most of us don’t keep perfect records of every purchase and agreement.
It may be possible to create a postnuptial agreement, but prenuptials are legally stronger, generally speaking.
LGBT Prenuptials were not always treated fairly—but they are (or should be) today
Before the 2015 ruling of Obergefell v Hodges, which legalized gay marriage nationwide, LGBT prenuptials were less valid in some states than others.
For example, Indiana was a state that refused to recognize LGBT marriages if even a couple was married in a state where gay marriage was legal. Thus, they also deemed all LGBT prenuptials invalid, even if they were legally sound in the state where they were signed.
Thankfully, this is no longer the case, and your prenuptials are now legally required to be recognized in all 50 states.
Prenuptials particularly important for LGBT couples
Given that LGBT couples still face discrimination and continue to have legal grey areas concerning many civil rights, it’s particularly important for them to create thorough, sound prenuptials. There are a few specific motivators as well, which we’ll cover here.
Frequently, LGBT couples marry later than heterosexual couples. This is due in part to the fact that gay marriage was not legal nation-wide until 2015. In fact, during the first 4 months after the Obergefell v Hodges ruling, nearly 100,000 LGBT couples got married. Many of them had been in a relationship for years, accumulating many shared assets, property, and liabilities.
In many cases, LGBT couples also marry later because they know they may face discrimination. Therefore, they postpone ‘coming out’ to their families, friends, and colleagues in fear of the social repercussions they may face.
Whatever the reason, LGBT couples are more likely than heterosexual couples to hold a long-term relationship before marriage. This often means that they live together, perhaps share bank accounts, and make large purchases together such as vehicles and homes. Any of this that happens before marriage does not fall under community property law. Thus, splitting those assets and liabilities in case of divorce can be complicated and frustrating in the absence of a prenuptial agreement.
A great benefit of prenuptials is that is requires the couple to sit down and talk through some of the less exciting, but still very important, aspects of their life together. You’ll ask questions like “Will we have a joint bank account?” “I’m expecting an inheritance in a few years. Should we share it, or not?” “How should we handle debt from my medical bills?”
In a way, prenuptials are romantic. After all, they show that the couple is committed to preventing future conflicts, and that they’re willing to have tough conversations in order to build a strong, sturdy foundation for their marriage.
Contact our experienced attorneys today to schedule a consultation about drafting your prenuptials.